CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 130/19
In the matter between:
DAVID LOUIS AYSCOUGH WILKINSON First Applicant
AMANDA BRIDGET TRUTER Second Applicant
and
GEORGINA ELIZABETH CRAWFORD N.O. First Respondent
PETER DAVIS N.O. Second Respondent
(in their capacities as the duly appointed trustees
for the time being of the L J DRUIFF TRUST
Registration No. T 1280)
ANNE-MARIE VIVIENNE STEVENS Third Respondent
GEORGINA ELIZABETH CRAWFORD Fourth Respondent
GERALDINE MARLAND Fifth Respondent
ANTHONY LEWIN Sixth Respondent
MASTER OF THE HIGH COURT, CAPE TOWN Seventh Respondent
RUTH JESSICA DRUIFF Eighth Respondent
JED MICHAEL DRUIFF Ninth Respondent
NICOLAS LESTER DRUIFF Tenth Respondent
PHILLIPA ANN CAMERON Eleventh Respondent
Neutral citation: Wilkinson and Another v Crawford N.O. and Others [2021] ZACC 8
Coram: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J,
Mathopo AJ, Mhlantla J, Theron J, Victor AJ
Judgments: Mhlantla J (majority): [1] to [101]
Majiedt J (dissenting): [102] to [163]
Jafta J (dissenting): [164] to [208]
Heard on: 11 February 2020
Decided on: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Constitutional
Court website and release to SAFLII. The date and time for hand -
down is deemed to be 10h00 on 16 April 2021.
Summary: Trust Deed — interpretation — freedom of testation — public policy
— section 39(2) of the Constitution
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court of
South Africa, Western Cape Division, Cape Town), the following order is made:
1. Condonation is granted.
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2. The late Mr David Louis Ayscough Wilkinson is substituted by
Mrs Jean Vanessa Wilkinson N.O. and Mr Shayne Wilkinson N.O. as
the first applicant.
3. Leave to appeal is granted.
4. The appeal is upheld.
5. The order of the Supreme Court of Appeal is set aside.
6. The following words in the Trust Deed of the late Mr Louis John
Druiff – “children”, “descendants”, “issue” and “legal descendant s”
exclude adopted children.
7. The exclusion referred to in paragraph 6 constitutes unfair
discrimination against adopted children and, consequently is contrary
to public policy and is therefore unenforceable.
8. The adopted children of the late Ms Dulcie Helena Harper, Mr David
Louis Ayscough Wilkinson and Ms Amanda Bridget Truter are
declared to be capital beneficiaries of a quarter share of the trust
capital.
9. The LJ Druiff Trust must pay the costs of this application.
JUDGMENT
MHLANTLA J (Khampepe J, Madlanga J, Theron J and Victor AJ concurring):
Introduction
[1] This matter concerns the interpretation of a trust deed. The trust deed was executed
at a time when legislation excluded adopted children from inheritance in terms of a
testamentary instrument unless it conveyed a clear intention to include them. It calls upon
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this Court to consider the question of unfair discrimination against adopted children and
the role of public policy when giving effect to private trusts.1
[2] The application is for leave to appeal against the order and judgment of the Supreme
Court of Appeal.2 Before dealing with the law pertaining to this application, it is apposite
at this stage to set out its factual background.
Background facts
[3] This application was instituted by the adopted children of the now -deceased
Ms Dulcie Helena Harper (Ms Harper). The first applicant was Mr David Louis Ayscough
Wilkinson, who is now late. He is represented by his executors. The second applicant is
Ms Amanda Bridget Truter . Ms Harper was the only surviving child of the late
Mr Louis John Druiff at the time proceedings were instituted in the High Court . The
respondents are duly appointed trustees,3 who include Mr Druiff’s biological grandchildren
and great-grandchildren.4
[4] On 28 January 1953, Mr Dr uiff executed a notarial deed of trust ( Trust Deed).5
At that time, Mr Druiff had four children, three of whom had their own biological children.
One of Mr Druiff’s children , Ms Harper, was married, but had no children. Ms Harper
averred that during her father’s lifetime, she had confided in him about the fact that she
had had two miscarriages and was therefore considering adoption. Mr Druiff was aware
that she was experien cing difficulties in carrying a baby to full term and had advised Ms
1 This matter was heard at the same time as King N.O. v De Jager [2021] ZACC 4; 2021 JDR 0283 (CC).
2 Harvey N.O. v Crawford N.O. [2018] ZASCA 147; 2019 (2) SA 153 (Supreme Court of Appeal judgment).
3 The trustees are Georgina Elizabeth Crawford N.O. and Peter Davis N.O.
4 The grandchildren and great-grandchildren are Ms Anne-Marie Vivienne Stevens, Ms Georgina Elizabeth Crawford,
Ms Geraldine Marland, Mr Anthony Lewin, Ms Ruth Jessica Druiff, Mr Jed Michael Druiff, Mr Nicolas Lester Druiff
and Ms Phillipa Ann Cameron.
5 Mr Druiff created the trust “for the benefit of his children and their descendants by reason of love and affection
which he bears [for] them”.
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Harper that she was still young (30 years old at the time) and ought not to make a hasty
decision, and should wait to see what the future held.
[5] The relevant clauses of the Trust Deed for purposes of this matter are clause s 4, 5
and 6. In terms of clause 4, the beneficiaries of the trust were Mr Druiff’s four children
and their children. That clause reads, in relevant part:
“The trustee or trustees shall stand possessed of the trust fund and shall invest and reinvest
the capital of the trust fund, and the net revenue and income derived therefrom, or part
thereof, shall either be allowed to accumulate, and the amount so accumulated added to the
capital of the trust fund, or the whole of the net income and revenue, or part thereof, shall
be applied for the benefit of all or any of the following persons, who may be alive at the
time, namely:
(a) Gladys Elizabeth Clark (born Druiff).
Married without community of property to Robert Bruce Clark.
(b) Nina Dorothy Lewin (born Druiff).
Married without community of property to Leo Lewin.
(c) Lester Phillip Druiff.
(d) Dulcie Helena Wilkinson (born Druiff).
Married without community of property to Michael Ayscough
Wilkinson.
(e) The child or any children of the said Gladys Elizabeth Clark (born
Druiff).
(f) The child or any children of the said Nina Dorothy Lewin (born
Druiff).
(g) The child or any children of the said Lester Phillip Druiff.
(h) The child or any children of the said Dulcie Helena Wilkinson
(born Druiff).
It shall be entirely at the discretion of the trustees as to how much of the revenue shall be
accumulated and how much applied for the benefit of the aforesaid beneficiaries and no
beneficiary shall be entitled to dispute the auth ority of the trustees in the exercise of the
discretion hereby conferred upon them.
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The trustees shall have the power in their absolute discretion at any time during the trust
period to apply for the benefit of any beneficiary above referred to, part or the whole of the
capital of the trust fund.”
[6] The Trust Deed gave the trustees the discretion to apply the trust fund for the benefit
of the beneficiaries. Upon Mr Druiff’s death, this discretionary power would end and the
net revenue and income was to be d ivided equally between his four children and paid to
them. If any child had predeceased Mr Druiff, his or her share was to devolve upon his or
her descendants per stirpes.6
[7] Clause 5 regulated the period of the trust and read:
“If the whole of the capital has not been applied for the benefit of the beneficiaries, as
provided in [clause] 4 hereof, the Trust shall remain in force for a period of one year after
the death of the said Louis John Druiff.”
[8] Clause 6 of the Trust Deed regulated the position following the termination of t he
trust. It reads as follows:
“At the expiration of the trust period as hereinbefore provided the trustees shall realise the
capital, or balance of capital, and divide the amount so realised equally b etween the said
four children of the said Louis John Druiff. In the event of any child dying prior to the
termination of the trust, his or her share shall devolve upon his or her legal descendants per
stirpes. If such child has no legal descendants, his or her share shall be divided equally
between the remaining children or their legal descendants per stirpes. If at such time there
are no children alive and no legal descendants of such children, then the Trustees shall
divide the capital between such persons as may be nominated as the heirs in the will of the
Donor, or if the Donor has failed to make a will, between the next-of-kin of the said Donor.”
6 Where succession takes place per stirpes the estate is divisible not according to the number of persons entitled t o
succeed, but according to the number of parent heads whom the heirs represent, the share of each parent head being
divided among his or her representatives.
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[9] The import of clause 6 is that in the event of any child dying before the termination
of the trust, his or her share shall devolve upon his or her “legal descendants” per stirpes.
[10] On 23 May 1953, approximately four months after the execution of the Trust Deed,
Mr Druiff executed a will and also amended clause 5 of the Trust Deed . The amended
clause 5 provided the following–
“[i]f the whole of the capital has not been applied for the benefit of the beneficiaries in
[clause] 4 hereof, the trust shall remain in force until the death of the said four children of
the donor, namely, as each of the said four children dies, his or her one-fourth share of the
capital of the trust shall be paid to his or her descendants per stirpes, in equal shares. If at
such time any of the descendants, who is entitled to receive a share of the capital, is under
the age of 28 years, such share of the capital shall continue to be held in trust and the
revenue thereof paid to such descendant or beneficiary, or to his or her guardian, until he
or she attains the age of 28 years, when the capital shall be paid to him or her. If a ny of
the said four children of the donor dies without leaving issue, his or her, one-fourth share
shall devolve upon the remaining children and shall form portion of the capital of the trust
and be subject to the terms and conditions of the trust.”
[11] The import of the amended clause 5 was that , if any of Mr Druiff’s children died
before the termination of the trust, his or her share would devolve upon his or her
“descendants” per stirpes. If a child had no descendants, his or her share would be divided
equally between the remaining children or their descendants per stirpes.
[12] Mr Druiff died in 1953. The effect of his death was that the discretionary power
conferred on the trustees ended and the net revenue and income was divided equally
between his children and paid to them. What remained was the capital which would be
paid to Mr Druiff’s grandchildren as each of his children died. Sometime after the death
of her father, Ms Harper adopted two children , the late Mr David Louis Ayscough
Wilkinson an d Ms Amanda Bridget Truter , the two applicants who instituted this
application.
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Litigation history
High Court
[13] Out of fear that her children would not benefit under the Trust Deed, Ms Harper
approached the High Court for relief . She sought a declarator that the words “children”,
“descendants”, “issue”, and “legal descendants” as used in clauses 4, 5 (as amended) and
6 of the Trust Deed include d her children, notwithstanding that they were adopted.
Alternatively, that the Trust Deed be amended in terms of section 13 of the Trust Property
Control Act7 (Trust Act) in order to apply to her children.
[14] The High Court c onsidered the provisions of the Children’s Act
(1937 Children’s Act),8 which was in force at the time the Trust Deed was executed.9 This
Act contained a proviso that obliged a testator , when bequeathing an asset to an adopted
child, to convey a clear intention to do so . On this basis, t he High Court concluded that
Mr Druiff’s omission to expressly include adopted children indicate d that he intended to
exclude them.10 It therefore held that only the biological descendants of his children can
be capital beneficiaries of the Trust Deed.11
[15] The High Court also considered the principle of freedom of testation and the
underlying rights it implicated, such as the right to property and dignity. 12 It held that,
while giving effect to Mr Druiff’s intention may constitute discrimination against adopted
7 57 of 1988.
8 31 of 1937.
9 Harper v Crawford N.O. 2018 (1) SA 589 (WCC) (High Court judgment).
10 Id at para 26.
11 Id.
12 For these assertions, the High Court relied on Minister of Education v Syfrets Trust Ltd N.O. 2006 (4) SA 205 (C)
(Syfrets); and BOE Trust Ltd N.O. (in their capacities as co -trustees of the Jean Pierre De Villiers Trust) [2012]
ZASCA 147; 2013 (3) SA 236 (SCA) at para 28.
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children, it could not be said that it was unfair discrimination since the right to equality
must be weighed against the right to freedom of testation pursuant to section 36 of the
Constitution.13 The High Court also noted that the equality clause does not, in every case,
provide a basis for an attack on the validity of a will or trust. 14 With regard to section 13
of the Trust Act, 15 the Court held that it finds no application in this matter since the two
jurisdictional facts required are absent.16 The High Court thus dismissed the application
with costs.
Supreme Court of Appeal
[16] The applicants appealed to the Supreme Court of Appeal. Ms Harper died o n
10 December 2017, before the hearing of the appeal. She was substituted by the executor
of her estate.
13 The High Court judgment above n 9 at para 33 said the following: “[e]ven if it were found that upon a proper
interpretation of the trust deed adopted children are discriminated against as envisaged by section 9 (4) of the
Constitution, it is not unfair discrimination and one must then undertake the process of weighing up the right to
equality against the right of freedom of testation (or, more broadly, the right to dispose of one’s property). This
process involves the limitation clause in section 36(1) of the Constitution”. This statement was made without a finding
that there was a law of general application.
14 Id at para 33.
15 Section 13 of the Trust Act reads as follows –
“If a trust instrument contains any provision which brings about consequences which in the opinion
of the court the founder of a trust did not contemplate or foresee and which—
(a) hampers the achievement of the objects of the founder; or
(b) prejudices the interests of beneficiaries; or
(c) is in conflict with the public interest,
the court may, on application of the trustee or any person who in the opinion of the court has a
sufficient interest in the trust property, delete or vary any such provision or make in respect thereof
any order whi ch such court deems just, including an order whereby particular trust property is
substituted for particular other property, or an order terminating the trust.”
16 High Court judgment above n 9 at para 35.
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[17] The Supreme Court of Appeal was split four to one.17 The majority judgment,
penned by Ponnan JA, considered the ordinary or grammatical meaning of “child” or
“grandchild” and, relying on Cohen,18 held that the ordinary meaning of “child” includes
blood relations only.
[18] The majority also considered the 1937 Children’s Act, which was in force at the
time of the execution of the Trust Deed. It emphasised that it was clear from the first
proviso to section 71(2) of that Act19 that adopted children were not entitled to any property
unless there was a clear intention from the instrument that adopted children were meant to
benefit; the test is not whether they were specifically excluded by the will, but rather
whether the will cl early conveyed an intention to include them. 20 The majority took
cognisance of the fact that the Trust Deed was drawn up by professional persons and thus,
Mr Druiff would presumably have been advised of the need to include adopted children in
express terms if he intended for them to benefit.21 Therefore, the majority held that, despite
being aware of the possibility of adoption, Mr Druiff did not manifest an intention to benefit
adopted descendants.
17 Supreme Court of Appeal judgment above n 2.
18 Cohen N.O. v Roetz N.O. [1991] ZASCA 173; 1992 (1) SA 629 (A).
19 Section 71(2) reads as follows –
“Subject to the provisions of section 79, an adopted child shall for all purposes whatsoever be
deemed in law to be the legitimate child of the adoptive parent but shall not––
(a) become entitled to any property devolving on any child of his adoptive parent by
virtue of any instrument executed prior to the date of the order of adoption
(whether the instrument takes effect inter vivos or mortis causa) unless the
instrument clearly conveys the intention that the property shall devolve upon the
adopted child;
(b) inherit any property intestate from any relative of his adoptive parent.”
20 Supreme Court of Appeal judgment above n 2 at para 50.
21 Id at para 51.
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[19] The majority also dealt with public policy considerations. It held that public policy
is rooted in the Constitution and some testamentary provisions may not pass constitutional
muster in light of the equality and non-discrimination imperatives. However, it held that
public trusts are judged more strictly than private ones,22 and this matter concerns what
occurs in the private sphere of the donor and is “not manifestly discriminatory”. 23 The
majority further held that a blunt application of the right to equality could lead to
insurmountable practical difficulties .24 It held that the facts of this application did not
concern a trust deed that contains “gratuitously discriminatory provisions of an egregious
kind”,25 and it had no juridical basis to rewrite the Trust Deed, as to do so would undermine
testamentary freedom and run contrary to established judicial restraint in setting aside
private testamentary gifts on public policy grounds .26 In sum, the majority held that
“although there are cases where the interest s of society require a court to interfere on the
grounds of public policy, this is manifestly not such a case”. 27 The Court also dismissed
the claim to vary the terms of the Trust Deed in terms of section 13 of the Trust Act, thus
dismissing the appeal with costs.
[20] The minority judgment, penned by Molemela JA, held that the issue of public policy
did not arise because the language of the Trust Deed, coupled with the surrounding
circumstances, did not reveal an intention to exclude adopted children. 28 It held that the
22 Id at para 53. The Supreme Court of Appeal notes a scholarly remark, citing at para 63, Thomas “The Intention of
the Testator: from the Causa Curiana t o Modern South African Law” in Coriat et al (eds) Inter Cives Necnon
Peregrinos: Essays in Honour of Boudewij n Sirks (Vandenhoeck and Ruprecht, 2014), at 727-38 where it is stated
that “the divide between public and private sphere should be the deciding factor if freedom of testation is to be taken
seriously.”
23 Supreme Court of Appeal judgment id at para 62.
24 Id at para 69.
25 Id at para 70.
26 Id.
27 Id.
28 Id at para 23.
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legal fiction created by section 71(2) in which adopted children were deemed to be the
“legitimate”29 children of the adoptive parent could be rebutted if the instrument, read as a
whole, revealed a contrary intention.30 The minority held that the words “child” and “any”
are inclusive and constitute a clear pointer to the inclusion of adopted children. Moreover,
the term “legal descendants” means that it is highly improbable that a donor would prefer
to refer to their existing or future biological grandchil dren or great -grandchildren as
“legal descendants”. The prefix “legal” serves to broaden the classes of beneficiaries to
include adopted children.
[21] With regard to background circumstances, the minority held that based on the
discussion between Ms Harper and Mr Druiff, there was no reason to consider the latter’s
advice as a reflection of any aversion towards benefitting adopted grandchildren. In
addition, the Trust Deed does not explicitly disinherit any person or class of beneficiaries
and that the impugned words are neutral terms. 31 The minority thus concluded that there
was no basis for finding that Mr Druif f’s manifest intention was to exclude adopted
children.
In this Court
[22] Aggrieved by the decision of the Supreme Court of Appeal, the applicants now seek
leave to appeal to this Court. The applicants seek a declarator that the words “children”,
“descendants”, “ issue”, and “legal descendants” (impugned words) include the adopted
grandchildren. Related to this and in light of the Supreme Court of Appeal’s finding that
the impugned words exclude adopted children , the applicants submit that this Court is
required to consider whether a court can interpret a trust deed in a manner that is contrary
to public policy and that has the effect of discriminat ing against adopted children in
29 I use “legitimate” only because it was the term used in the legislation of the time.
30 Supreme Court of Appeal judgment at para 29. In other words, an intention to exclude the adopted children.
31 Id at para 31. This can be compared to Cohen above n 18 whereby the donor specified “eldest child” right up to the
fourth generation.
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contravention of section 9 of the Constitution. In the alternative, they ask this Court to
vary the Trust Deed in terms of section 13 of the Trust Act s o that the impugned words
include them.
Issues
[23] The main issue is whether the impugned words in the Trust Deed exclude adopted
children. If so, whether that exclusion constitutes unfair discrimination against adopted
children on the basis of birth as well as on an analogous ground of adoptive status and is
thus contrary to public policy and unenforceable. In order to determine the second
question, it will be necessary to consider the pleadings to establish whether the issue of
unfair discrimination had been properly pleaded before th is Court. Before addressing the
key issue, I must first dispose of the preliminary issues, namely, condonation; substitution;
and leave to appeal.
Condonation
[24] The application for leave to appeal is late by three months. The applicants explain
that after the death of their mother, the litigation was to be funded by her estate. The
executor decided not to pursue a further appeal when the Supreme Court of Appeal
dismissed their appeal . They wish ed to bring an application in this Court but lacked
financial resources. Their attorneys were subsequently approached by an official of Legal
Aid South Africa (Legal Aid) . The official indicated that due to the importance of the
issue, there was merit in an application for leave to appeal and that Legal Aid would
consider funding the application for leave to this Court. The applicants, thereafter, made
written submissions to Legal Aid and only in April 2019 were their attorney s granted
permission to proceed with the application to this Court. The applicants further submit that
the delay has not resulted in any of the respondents being unduly prejudiced as their
potential share in the trust is invested in an interest-bearing account, and that the
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respondents will benefit from the growth of the investment, should th e applicants be
unsuccessful in this Court.
[25] The application for condonation is unopposed and the explanation for the delay is
reasonable. Furthermore, no prejudice will be suffered by the respondents. Therefore,
condonation should be granted.
Application for substitution
[26] On 30 January 2020, this Court was informed of the death of the first applicant, Mr
David Louis Ayscough Wilkinson. Shortly thereafter, Ms Jean Vanessa Wilkinson N.O.
and Mr Shayne Wilkinson N.O., in their capacities as co-executors of his estate, applied to
be substituted as the first applicant. The co -executors stated that t hey supported the
continuation of these proceedings, hence the application for substitution. The respondents
did not oppose the application.
[27] In the circumstances, the co-executors have made out a case for substitution and this
relief should be granted accordingly.
Leave to appeal
[28] The applicants submit that th is matter engages this Court’s jurisdiction as it raises
constitutional issues that ought to be considered by this Court. These constitutional issues
are, first, the High Court and the majority of the Supreme Court of Appeal failed to apply
section 39(2) of the Constitution and interpret legislation in a manner that promotes the
spirit, purport and objects of the Bill of Rights . Second, the consequence of the decision
of the Supreme Court of Appeal is that adopted children have been unfairly discriminated
against solely on the basis of their birth or status . In addition, the applicants submit that
the matter raises arguable points of law. In context, these appear to be the same points that,
according to them, ground our constitutional jurisdiction. They go on to submit that these
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points are arguable and, in doing so, deal with each of the Paulsen factors on whether a
point of law is arguable.32 Based on the outcome I reach, it is not necessary to set out what
they say in this regard.
[29] In my view, jurisdiction in this matter cannot be pegged on the basis that it
implicates section 39(2) of the Constitution , which concerns the interpretation of
legislation. This is because we are concerned with the interpretation of the Trust Deed of
a private trust and not legislation. Nevertheless, this matter does engage this Court’s
constitutional jurisdiction. In addition to the interpretation issue, it concerns the question
whether freedom of testation in the context of a private trust impinges upon freedom from
unfair discrimination, a right enshrined in the equality clause of the Bill of Rights.
[30] The next hurdle is whether it is in the interests of jus tice to grant leave to appeal.
Since this matter also raises the question whether freedom of testation should yield to
equality in the context of a private trust, given the public interest and imp ortance of this
Court reaching a decision, it is desirable that leave to appeal be granted. In addition, this
Court has never before been called upon to consider the question whether the exclusion of
adopted children from benefiting under a testamentary i nstrument constitutes unfair
discrimination against those children on the basis of birth as well as on an analogous ground
such as adoptive status. There are also prospects of success. Therefore, leave to appeal
must be granted. Thus it becomes unnecessary to say anything further about jurisdiction
and leave to appeal on the basis of section 167(3)(b)(ii) of the Constitution (i.e. what we
loosely call “general jurisdiction”). It is especially so because the points of law relied upon
appear to be the same as those that found constitutional jurisdiction.
32 Paulsen v Slip Knot Investments 777 (Pty) Limited [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015 (5) BCLR 509
(CC) at para 23.
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Merits
Applicants’ pleaded case
[31] When determining issues on appeal, it is imperative to consider the pleadings.
Ordinarily, a litigant’s case must be pleaded in the founding papers and not for the first
time in argument. 33 This Court has explained that this requirement is necessary to give
notice to the other party of the case it will have to meet, so as to allow it the opportunity to
present factual material and legal argument to meet that case. 34 In the founding papers in
this Court, the applicants’ rebuttal of the Supreme Court of Appeal’s judgment is primarily
based on the minority judgment’s reasoning, namely that the core issue is one of
interpretation of the impugned words in light of Mr Druiff’s intention. The arguments
advocating for the development of the common law based on public policy considerations
were raised primarily in the applicants’ written submissions.
[32] However, the general rule that a litigant must make out its case in its founding
affidavit, is subject to the following exception, which was set out in My Vote Counts, where
this Court said:
“a point that has not been raised in the affidavits may only be argued or determined by a
court if it is legal in nature, foreshadowed in the pleaded case and does not cause prejudice
to the other party.”35
[33] In applying the above to these facts we must first consider whether the point is legal
in nature. The development of the common law and public policy considerations where
there is alleged unfair discrimination is manifestly a legal issue, as opposed to a factual
33 My Vote Counts NPC v Speaker of the National Assembly [2015] ZACC 31 ; 2016 (1) SA 132 (CC) ; 2015 (12)
BCLR 1407 (CC) at para 177.
34 Prince v President, Cape Law Society [2000] ZACC 28; 2001 (2) SA 388 (CC); 2001 (2) BCLR 133 (CC) at para 22.
This was said in the context of a pleaded case in respect of a constitutional challenge but would apply in respect of all
pleadings.
35 My Vote Counts above n 33 at para 177.
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one. Second, we must consider whether the point was foreshadowed in the pleaded case.
It clearly was. The applicants say in their founding affidavit that an adjunct question to the
interpretation issue is “whether [a] court can interpret a Trust Deed in terms of archaic
principles which today would be contrary to public policy and would not pass
[c]onstitutional muster”. This can be read as an indication that the applicants were laying
the foundation for a public policy argument in addition to the interpretation argument. The
third factor to consider is whether the respondents would be prejudiced should a
determination be made by this Court in respect of the belated point .36 The respondents
extensively argued the merits of the public policy issue. The ir contention is that the
submissions in that respect fall to be dismissed on the grounds that, when balanced against
the right to freedom of testation, public policy does not requir e that discrimination in
private wills, unlike public charitable trusts, be outlawed. In addition to this, the public
policy argument was pleaded before the High Court,37 and the majority judgment of the
Supreme Court of Appeal dealt extensively with public policy, unfair discrimination and
freedom of testation considerations.38 Therefore, it cannot be said that the respondents are
prejudiced by the argument only being expanded upon in the written submissions before
this Court.
[34] Therefore, although the primary case pleaded by the applicants in the ir founding
papers was mainly based on the interpretation argument, I am satisfied that the request for
development of the common law in light of public policy considerations was sufficiently
foreshadowed therein as it was identified as an adjunct issue. I now proceed to consider
the merits of each of the main issues in this matter.
36 The respondents submit that the development of the common law was never pleaded and the applicants’ “entire
case, as pleaded rested solely on the interpretation argument”.
37 High Court judgment above n 9 at paras 10 and 13-4. Supreme Court of Appeal judgment above n 2 at para 4 noted
that the public policy argument was pleaded before the High Court.
38 Supreme Court of Appeal judgment above n 2 at paras 51 to 71.
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Interpretation of the Trust Deed
[35] The golden rule of interpretation of testamentary instrument s is to “ascertain the
wishes of the testator from the language used” .39 As a general rule, words and phrases
must be given the meaning they had at the time the testamentary instrument was made.40
It is thus imperative to consider what the words used by the testator mean or what the
testator meant by using the words.41
[36] The requisite starting point is to consider whether Mr Druiff intended the impugned
words “children”, “descendants”, “issue” and “legal descendants” to include adopted
children. In order to do so, it is imperative to grapple with the interpretation of the
impugned terms as used by the testator at the time the will and Trust Deed were executed.42
This will entail a consideration of the significance, if any, of the use in clause 6 of the Trust
Deed of the term “legal descendants”: does the use of that term indicate a clear intention
39 Robertson v Robertson’s Executors 1914 AD 503 at 507.
40 Corbett et al The Law of Succession in South Africa 2 ed (Juta & Co Ltd, Cape Town 2001) at 457. See also Greeff
v Estate Greeff 1957 (2) SA 269 (A) at 275C-D in which it was held that, words and phrases used by the testamentary
document must be given the meaning which they bore at the time the will was executed.
Corbett et al note at 36 and 458 respectively that “[a]s the will takes effect only on the date of the testator’s death the
will is said to speak from the date of death” and “a will is ambulatory and speaks from the time of the testator’s death,
the latter date may have to be looked to in order to ascertain what a word includes”.
However, in Johnstone’s Executrix v Master, Supreme Court 1919 TPD 112 at 115 it was held by Mason J that:
“[T]he words of the will are to be construed in a ccordance with their meaning at the period when
the will was made, but that the operation and effect of the will is determined by the law in force at
the time of the testator’s death.”
41 Corbett et al id at 457.
42 Bothma-Batho Transport (Edms) BpK v S Both ma and Seun Transport (Edms) Bpk [2013] ZASCA 176; 2014 (2)
SA 494 (SCA) at para 12 where it was held that not only should the literal meaning be given weight to, but the words
should be considered in light of “all relevant and admissible context, including the circumstances in which the
document came into being.” In Sea Plant Products Limited v Watt 2000 (4) SA 711 (C) at 720G Van Heerden J held
that “the point of departure in interpreting a trust deed is therefore the grammatical or ordinary meaning of the words
used, read within the context of the trust deed as a whole.”
In Moosa v Jhavery 1958 (4) SA 165 (N) at 169D-E Caney J held:
“In my opinion the trust speaks from the time of its execution and must be interpreted as at that time.
It is the settlor’s intention at that time which m ust be ascertained from the language he used in the
circumstances then existing. Subsequent events (and in these are included statutes) cannot, I
consider, be used to alter that intention.”
MHLANTLA J
19
to include adopted children? If not, and they are excluded, the next consideration will be
to establish when vesting occurred; this is relevant to determine whether the law precludes
effect being given to the testator’s intention. Finally, if it is found that the will does not
convey a clear intention to include adopted children , it will be necessary to consider
whether this Court should give effect to these testamentary wishes or whether they are
contrary to public policy as infused with constitutional values and thus unenforceable.
[37] The natural starting point then, has to be to determine t he meaning of the words at
the time they were written. But before doing so, I must consider the legislation that was in
force when the Trust Deed was executed and how adopted children were catered for in that
legislation.
The 1937 Children’s Act
[38] The legislation that was in force when the Trust Deed was executed was the 1937
Children’s Act. The respondents rely on that Act and the amended clause 5 and submit
that because the Trust Deed was executed before the adoption of the late Ms Harper ’s
children, the adopted children could not be entitled to any property, unless the intention to
devolve the property upon them was clearly conveyed by the testator . The respondents
submit that the intention and meaning of a trust deed are to be discerned in light of the
surrounding circumstances at the time of its execution. Subsequent events, including
statutes, cannot be used to alter the original intention. The respondents also contend that
Mr Druiff had professional assistance and therefore could have clearly conveyed an
intention to include adopted children had he wanted to.
[39] The relevant provision is section 71(2), which provided:
“Subject to the provisions of section 79, an adopted child shall for all purposes whatsoever
be deemed in law to be the legitimate child of the adoptive parent: Provided that an adopted
child shall not by virtue of the adoption ––
MHLANTLA J
20
(a) become entitled to any property devolving on any child of his adoptive
parent by virtue of any instrument executed prior to the date of the order
of a doption (whether the instrument takes effect inter vivos or mortis
causa) unless the instrument clearly conveys the intention that the
property shall devolve upon the adopted child;
(b) inherit any property ab intestato from any relative of his adoptive parent.”
[40] Section 71(2) (a) pertinently exclude d adopted children from entitlement to any
property devolv ing upon the children of the adoptive parent by virtue of, among other
things, a testamentary instrument executed before the date of adoption, unless the
instrument clearly conveyed the intention that the property shall devolve upon an adopted
child. The 1937 Act was repealed and replaced by the 1960 Children’s Act. 43 The
provisions of section 74(2) of the 1960 Act were, for practical purposes, identical to those
in section 71(2) of the 1937 Act. 44 The 1960 Children’s Act was repealed by the Child
Care Act.45 Section 20(2) of the Child Care Act, which is otherwise couched in identical
terms to those of the earlier enactments, omits the proviso excluding adopted children from
inheriting unless clearly provided for.46 Therefore, statutory limitations on inheritance by
43 33 of 1960 (1960 Children’s Act).
44 Section 74(2) of the 1960 Children’s Act reads as follows –
“(2) Subject to the provisions of section 82, an adopted child shall for all purposes whatsoever be
deemed in law to be the legitimate child of the adoptive parent: Provided that an adopted child shall
not by virtue of the adoption –
(a) become entitled to any property devolving on any child of his adoptive parent by virtue
of any instrument executed prior to the date of the order of adoption (whether the
instrument takes effect inter vivos or mortis causa), unless the instrument clearly conveys
the intention that that property shall devolve upon the adopted child;
(b) inherit any property ab intestatio from any relative of his adoptive parent.”
45 74 of 1983.
46 Section 20(2) of the Child Care Act reads as follows –
“An adopted child shall for all purposes whatsoever be deemed in law to be the legitimate child of
the adoptive parent, as if he was born of that parent during the existence of a lawful marriage.”
MHLANTLA J
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adopted children were (and rem ain) omitted . The current Children’s Act 47 follows the
approach of the Child Care Act and provides in section 242(3):
“An adopted child must for all purposes be regarded as the child of the adoptive parent and
an adoptive parent must for all purposes be regarded as the parent of the adoptive child.”
[41] The purpose of the 1937 and 1960 provisos was to ensure that the deeming
provisions created by the Acts would not encroach on the inherent bias favouring
inheritance by blood relations only.48 Therefore, the default ap proach was the exclusion
of adopted children from a beneficiary class such as “children” or “descendants” unless
there was a clear intention to include them.
[42] Two key cases offer guidance on the proviso. Boswell49 centred on the proper
interpretation of the words “zonder een kind of kinders na te laten” (without leaving a child
or children) and the effect that section 74(2) of the 1960 Children’s Act had on such an
interpretation.50 A clause in the will provided that if one or more of the legatees were to
die without leaving a child or children , the inherited land or lands of the deceased would
devolve on the other children or their legal descendants, under the same conditions . One
of the legatees passed away and did not bear any children, but was survived by a legally
adopted son.51
[43] The respondent in that matter relied on the legal fiction created by section 74(2) of
the 1960 Children’s Act which stipulated that “an adopted child for all purposes whatsoever
47 38 of 2005.
48 Murray “Law of Succession (Including Administration of Estates)” Annual Survey of South African Law (1975) 266
at 291.
49 Boswell v van Tonder 1975 (3) SA 29 (A).
50 Id at 33.
51 Id.
MHLANTLA J
22
by law shall be deemed to be the lawful chil d of the adoptive parents”. 52 The
Appellate Division held that section 74(2) of the 1960 Children’s Act expressed the
consequences of adoption and did not determine how testamentary documents ought to be
interpreted.53 In interpreting section 74(2) , the Appellate Division made the following
findings: (a) the Legislature did not intend to interfere with the freedom of the testator to
dispose of his property as he wished; 54 (b) the deeming provision, which provided that an
adopted child shall for all purposes whatsoever be deemed in law to be the legitimate child
of the adoptive parent, did not embody a rule of interpretation applicable to all testamentary
trusts, namely a rule that words such as “children” or “descendants” appearing in those
instruments were not to bear their ordinary meaning but a wider meaning which included
an adopted child;55 (c) had the Legislature intended to make such a rule , one would have
expected a provision to that effect, in terms similar to those of section 13(2) of the English
Adoption Act, 1950;56 (d) that in contrast to the relevant provisions of the English Adoption
Act, section 74(2) did no more than describe the consequences of an adoption; 57 and; (e)
the presumption in favour of the operation of such fiction could be displaced if by applying
the ordinary rules of interpretation a contrary testamentary int ention appeared.58 This led
the court to conclude that, as a result of section 74(2) of the Children’s Act , the will did
not grant any rights in respect of the adopted child.59
52 Id at 36A and G-H.
53 Id at 38G-H.
54 Id at 37.
55 Id at 39B.
56 Id at 38E-F. This section in the English Adoption Act read as follows –
“In any disposition of real or personal property made, whether by instrument inter vivos or by will
(including codicil) after the date of an adoption order -
(a) any reference (whether express or implied) to the child or children of the adopter, shall,
unless the contrary intention appears, be construed as, or as including, a reference to
the adopted person...”
57 Id at 38G-H.
58 Id at 40F.
59 Id at 36H-37A.
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23
[44] In Cohen, the issue was whether the testators intended to include an adopted child
within the meaning of “eldest child”. The Appellate Division followed the principles laid
down in Boswell. It held that once that intention has been ascertained, it becomes necessary
to consider the 1937 Children’s Act and the Child Care Act (and for our purposes the
current Children’s Act) when considering whether they operate in a manner that precludes
the intention being given effect to .60 In coming to its decision on the first question, th e
Appellate Division said that the will in question appeared to have been prepared by a
professional person at a time when the 1937 Children’s Act was operative .61 Thus, the
Appellate Division inferred from this that the testator would have been informed of the
necessity to expressly include adopted children if this was the intention.62 That Court noted
that the effect of section 71(2) of the 1937 Children’s Act was that:
“No child adopted after the execution of an ‘instrument’ could inherit property devolving
on any child of his adoptive parent under such instrument unless it ‘clearly conveys the
intention that the property shall devolve upon the adopted child’.”63
[45] When the Appellate Division turned to the issue of the deeming provision of the
Child Care Act, it held that the legal fiction created therein did not alter what was held in
Boswell and the fiction must give way if the scheme of the will does not clearly convey an
intention to include adopted children as beneficiaries.64
[46] I have read the judgment of my brother Jafta J (third judgment) and have considered
the interpretation he gives to section 71(2) of the 1937 Children’s Act. He concludes that
the proviso does not apply in this insta nce. This is because, as he understands it, for the
60 Cohen above n 18 at 39.
61 Id at 640.
62 Id.
63 Id.
64 Id at 640A-C.
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24
proviso to apply, the testamentary instrument must not only be executed before the date of
the order of adoption but the relevant property must devolve on the biological children of
the adoptive parent and , absent biological children (as was the case with M s Harper), the
proviso does not apply and adopted children are free to inherit.65
[47] I do not interpret the section this way. Section 71(2) starts by confirming that an
adopted child shall, for all intents and purposes, be deemed in law to be the “legitimate”66
child of the adoptive parent. The effect of this deeming provision was that an adopted child
like a biological child was, in law, the child of the adoptive parent. Following th is
introduction to the section, subsection 71(2)(a) then provides that notwithstanding the
deeming provision, in respect of a testamentary instrument conclud ed before a child has
been lawfully adopted, that child shall not be entitled to any property devolving on “ any
child” of the adoptive parent unless the instrument conveys a clear intention that adopted
children are entitled to benefit.
[48] As I read it, owin g to the deeming provision, the term “any child” includes both
biological and adopted children. I read the proviso to mean that if a testamentary
instrument provides that property will devolve upon a child or children , the property will
devolve upon an adopted child or children only if the instrument conveys a clear intention
that this be so. This is the case whether the adoptive parent only has adopted children. The
proviso intended to make it clear that for purposes of interpreting a testamentary instrument
(that was concluded before any lawful adoption had occurred) terms such as “child” did
not include adopted children (although for all other purposes they would), unless it was
clearly indicated that such terms were intended to include them. If the parent had only
adopted children (like M s Harper for example) and the testamentary instrument was
concluded before their adoption and failed to indicate a clear intention that adopted children
65 Third judgment at [198] to [201].
66 Again, I use “legitimate” only because it was the term used in the legislation of the time.
MHLANTLA J
25
must inherit or to include them in terms such as “child” , the di sposition would fail. Of
course, if the testamentary instrument was concluded after the children were adopted and
words such as “child” were used, the proviso would not apply to them.
Meaning of the impugned words
[49] The impugned words can be found in clause 4, the amended clause 5, and clause 6
of the Trust Deed. The three clauses are inconsistent in how they use the impugned words.
Clause 4, amongst other things, sets out the beneficiaries of the trust and provides that the
“child” or “children” of the beneficiaries may benefit under the trust. On the date of Mr
Druiff’s death, the discretionary powers of the trustees would fall away and the income
was to be divided equally and paid to the four children. The amended clause 5 regulates
the period of the trust and is the provision that appoints capital beneficiaries. It provides
that the trust shall be in force until all four of Mr Druiff’s children have died, and that as
each child dies, his or her share of the capital would be paid to his or her “descendants”. It
also provides that if any of the four children die s without leaving “issue” his or her share
shall devolve upon the remaining children. Clause 6, which regulates the termination of
the trust, provides, inter alia, that in the event of any child dying before the termination of
the trust, his or her share shall devolve upon his or her “legal descendants” per stirpes.
[50] Two of the clauses, that is, clause 4 and the amended clause 5, refer to “children”,
“issue” and “descendants”. There is no express mention in the Trust Deed of adopted
grandchildren. The terms “descendant” and “child”, when the proviso applie d, were held
in Boswell and Cohen to refer to blood relations only. The term “issue” has been held to
be synonymous with the term “children”.67 It follows that clause 4 and the amended clause
5 of the Trust Deed do not convey a clear intention to include adopted grandchildren as
beneficiaries. At the time of execution of the Trust Deed, Mr Druiff was aware that his
67 See Ex parte MacDonald 1929 WLD 23 and Executor Estate Jackson v Myers 1940 CPD 600.
MHLANTLA J
26
daughter was cons idering adoption, yet he did not convey a clear intention that adopted
grandchildren could benefit under the trust.
Interpretation of “legal descendants”
[51] Clause 6, by contrast, refers to “legal descendants”. Assuming that the term
“descendant”, like “child”, did not go beyond blood descendants or blood relations, one
must consider whether the qualifier added in clause 6, which specifies that “legal
descendants” will benefit, evinces a clear intention to include adopted children. The third
judgment agrees with the applicant s that the term “legal descendants” includes adopted
children.
[52] As I understand it, the third judgment reasons that, following Ms Harper’s death in
2017, the amended clause 5 of the Trust Deed would no longer be relevant to the question
whether adopted children were to inherit under the Trust Deed. This is because, as the last
of Mr Druiff’s four children, her death triggered clause 6 .68 The third judgment correctly
posits that the term “legal descendants” is used in clause 6 while it is not used in clause 4
and the amended clause 5 – there, only the words “children”, “descendant” and “issue” are
used. The third judgment is of the view that the term “legal descendant”, as used in clause
6, indicates a change of intention in favour of adopted children, and the term “legal” cannot
be used to describe one’s biological descendants, therefore it must be understood to
describe someone whose relationship with the parent is sourced from a legal process.69
[53] The Supreme Court of Appeal in Naude70 identified adoption as:
68 Third judgment at [188].
69 Id at [179].
70 Naude v Fraser [1998] ZASCA 56; 1998 (4) SA 539 (SCA).
MHLANTLA J
27
“[T]he legal process through which the rights and obligations between a child and its
natural parent or parents are terminated, and a new parental relationship enjoying full legal
recognition is created between the child and its adoptive parent or parents. . . [And the
child was deemed as having been] born of a lawful marriage.”71
[54] Therefore, the inclusion of a “lawful” descendant would arguably include both
children born in a lawful marriage (as opposed to those born to unmarried parents) and
adopted children. For both, a le gal (hence “lawful”) process is required in creating the
relationship that results in the child concerned being the child of the parent concerned . It
is therefore plausible that the term “legal descendants” as used in clause 6 could encompass
biological a nd lawfully adopted children. That effectively makes the term “legal
descendants” neutral.
[55] However, when one considers section 71 of the 1937 Children’s Act in its totality,
the section itself speaks to the effect of adoption and in particular reads that an adopted
child shall for all purposes whatsoever be deemed in law to be the legitimate child of the
adoptive parent but shall not be entitled to any inheritance unless there is a provision in the
will or trust deed that indicates a clear intention for that child to inherit. Therefore, reading
“legal descendant” to be the inclusion, as required by the proviso, would neglect the fact
that such “lawfulness” is effectively created by the same provision. Therefore, as I see it,
section 71(2) requires the testator to do something that is substantially more for the adopted
children to be included. The point remains: does what has been expressed in the instrument
sufficiently evince a clear conveyance of an intention for the property to devolve upon an
adopted child? To my mind, “legal descendants” does not do the trick.
71 Id at 548-9.
MHLANTLA J
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Interplay between clauses 4, 5 and 6
[56] As discussed above, clauses 4 and 5 on their own do not evince a clear intention to
include adopted children . Even if we accept, as the third judgment does, that t he term
“legal descendants” in clause 6 evinces a clear intention to include any descendants who
became descendants through a legal process (including adopted children) , there are
inconsistencies between the amended clause 5 and clause 6 that render the interpretation
of the Trust Deed unclear vis-à-vis the intention to include adopted children . On the one
hand, the amended clause 5 does not refer to “legal” descendants at all and provides that
the trust would remain in force until the death of all four children and as each child dies ,
his or her share would be paid to his or her “descendants”. Clause 6 on the other hand,
does not only regulate what should happen once the Trust Deed has terminated (i.e. once
all four children had passe d), but specifically provides that “in the event of a child dying
prior to the termination of trust his or her share shall devolve to his or her ‘legal
descendants’”. These two provisions are therefore contradictory insofar as they both
regulate the consequences of the death of any of the original four children. It is unclear
when a child’s share of the trust property should devolve to their “descendants” in terms
of the amended clause 5 or their “legal descendants” under clause 6. Another interesting
point is that although clause 6 is titled “Termination of Trust” , it nonetheless attempts to
regulate how the property should devolve in the event of a child dying before the
termination of the trust.
[57] It is noteworthy that the amended clause 5 was incorporated into the Trust Deed
approximately four months after the Trust Deed (including clause 6) was executed. It was
therefore included in the Trust Deed with full knowledge of the provisions and language
used in the existing clause 6. The decision not to align the conflicting provisions adds to
the lack of clarity in the Trust Deed in respect of the intention to include adopted children.
Alternatively, clause 6 was rendered redundant by the introduction of the amended
clause 5.
MHLANTLA J
29
[58] Further, clause 6 would only be applicable to the legal descendants of the last dying
child (as the trust would only terminate upon their death) , and not to the other three
children’s legal descendants.
[59] In order for there to be a clear intention, the wording used must be free from
obscurity or ambiguity. Taking into account the testamentary instrument as a whole, the
inconsistencies between clause 4, the amended clause 5 and clause 6 and the oddity of a
different regime applying to the descendants of the last dying child, it cannot be said that
the phrase “legal descendant” in clause 6 conveys a clear intention to include Mr Druiff’s
adopted grandchildren.
Vesting
[60] Another potential route to avoid the application of the proviso is to circumvent the
application of the 1937 Children’s Act altogether by considering: (a) whether the rights
vested upon the death of Ms Harper and not on Mr Druiff’s passing; and (b) if this is so,
whether one considers the statutes in existence at the time of Ms Harper’s death (that is,
the current Children’s Act that does not contain the proviso).
[61] As will be recalled, Mr Druiff’s trust was entirely discretionary up until the time of
his death. This therefore means that the beneficiaries (both the children and the
grandchildren) had no vested rights and as such any income or capital that they may receive
was determined purely by the discretion of the trustee(s). Further, it is crucial to note that
the Trust Deed made provision for two main types of beneficiaries: “income” beneficiaries
referring to the children of the testator and “capital” beneficiaries being the grandchildren.
It is common cause that the trust’s discretionary nature ended with the death of the donor;
at that point the children had a vested right to the income. What is in dispute, however, is
the stage at which the grandchildren’s rights vested.
MHLANTLA J
30
[62] It is accepted that vesting, when the beneficiary becomes the holder of a right, takes
place depending on the intention of the testator as indicated in the testamentary document.72
There is a presumption in favour of immediate vesting,73 and thus prima facie that interest
would vest immediately upon the testator’s death .74 However, a testator may postpone it
to another moment after their death. Vesting comprises of “two sub-moments, namely dies
cedit, the time when a beneficiary obtains a vested right to claim delivery of the bequeathed
benefit unconditionally, and dies venit, the time at which the beneficiary’s right to claim
delivery of the benefit becomes enforceable.” 75 Put differently, “an inheritance or other
interest in a deceased estate vests in the b eneficiary when the right thereto has become
unconditionally fixed and established in the beneficiary”.76 South African law is clear that
vesting accords with dies cedit, in terms of Roman-Dutch law.77
[63] The applicants submit that the Supreme Court of Appeal and the High Court
neglected developments in public policy, regarding the laws concerning adopted children,
and failed to recognise that it evolves over time 78 pursuant to the values of the
Constitution.79 Further, the appropriate time to interpret the Trust Deed, in consideration
of the applicants’ status, is the present time – since the amended clause 5 stated that the
Trust Deed would remain in force until the death of all four of Mr Druiff’s children, which
would then see a quarter of the share of the capital paid to his descendants per stirpes. The
72 Smith v Estate 1949 (1) SA 534 (A) at 544; Wasserman v Sackstein 1980 (2) SA 535 (O) at 540D -E; and Webb v
Davis [1998] ZASCA 10; 1998 (2) SA 975 (SCA) at 981H-I.
73 Corbett et al above n 40 at 510 see fn 26. See also Webb id at 993B-C.
74 Estate Cato v Estate Cato 1915 AD 290 at 305-6.
75 Jamneck et al The Law of Succession in South Africa 2 ed (Oxford University Press, Cape Town 2012) at 134.
76 It is useful to consider the distinction between dies cedit and dies venit which was considered in De Leef Family
Trust v Commissioner for Inland Revenue [1993] ZASCA SA 46; 1993 (3) SA 345 (A) at 356 where it was stated that
dies cedit was described as the moment the right is due and owing; dies venit on the other hand is when ‘the time for
enjoyment has arrived and delivery or transfer of its subject matter may be claimed’, in other words: when the right
becomes enforceable.
77 Cameron et al Honoré’s South African Law of Trusts 5 ed (Juta & Co Ltd, Cape Town 2002) at 556-7.
78 Syfrets above n 12 at para 24.
79 BOE Trust Ltd above n 12 at para 11.
MHLANTLA J
31
applicants submit that on a purposive interpretation of the current Children’s Act, it should
be applied retrospectively and that public policy at the time of vesting should prevail.
[64] In this matter, dies cedit occurred in 1953 on the death of Mr Druiff and dies venit
was postponed until the death of each of his four children. For present purposes, dies venit
occurred in December 2017 when Ms Harper passed away.
[65] The applicants’ argument is without merit. Vesting cannot save their case since the
interpretation question needs to have regard to the law at the time of drafting and execution
in order to ascertain the testator’s wishes and the meaning of the impugned words – not at
the time of vesting. The law at the time of vesting is rele vant only to consider whether
there is a law that precludes giving effect to the testator’s intention. In Cohen, it was stated
that effect must be given to the wishes of the testators unless that is precluded by statute or
common law. 80 It follows that th e applicants were excluded from benefiting under the
Trust Deed.
[66] Now that it has been established that the Trust Deed cannot be interpreted to include
Mr Druiff’s adopted grandchildren as beneficiaries, I will consider, as was pleaded by the
applicants, whether this interpretation discriminates against adopted children in a manner
that is contrary to public policy and therefore unenforceable.
Is the Trust Deed contrary to public policy?
[67] The applicants submit that the interpretation of the Trust Deed by t he High Court
and Supreme Court of Appeal infringes their constitutional rights, in particular, the right to
equal treatment as enshrined in section 9 of the Constitution. They emphasised that equal
treatment has been recogni sed by this Court in Van Heerd en as the bedrock of our
80 Cohen above n 18 at 638-9.
MHLANTLA J
32
constitutional democracy .81 They submit, that the High Court and Supreme Court of
Appeal failed to interpret the legislation in a manner that promotes the spirit, purport and
objects of the Bill of Rights , and the interpretation of the provision discriminates against
adopted children on the basis of their birth and status, thus contravening section 9 of the
Constitution.82 Discrimination on that basis impairs their fundamental human dignity.
They submit that a dopted persons have suffered from past patterns of disadvantage, and
this is evidenced by the Legislature’s intervention.
[68] The respondents submit that the applicants cannot rely directly on the Bill of Rights,
in particular, the alleged violations of section 9(3), due to the non-retrospectivity rule.
They challenge the applicants’ failure to address the development of the common law
pursuant to section 39(2) of the Constitution. They further maintain that there is no right
81 Minister of Finance v Van Heerden [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC) at para 22
(Van Heerden). The applicants rely specifically on the following dictum in Van Heerden –
“The achievement of equality goes to the bedrock of our constitutional architecture. The
Constitution commands us to strive for a society built on the democratic values of human dignity,
the achievement of equality, the advancement of human rights and freedom. Thus the achievement
of equality is not only a guaranteed and justiciable right in ou r Bill of Rights but also a core and
foundational value; a standard which must inform all law and against which all law must be tested
for constitutional consonance.”
82 In terms of section 9 of the Constitution –
“(1). Everyone is equal before the law and has the right to equal protection and benefit of the
law.
(2). Equality includes the full and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3). The state may not unfairly discriminate directly or indirectly against anyone on one or more
grounds, including race, gender, sex, pregnancy, marital status, ethnic or social ori gin,
colour, sexual orientation, age, disability, religion, conscience, belie f, culture, language
and birth.
(4). No person may unfairly discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3). National legislation must be enacted to prevent or
prohibit unfair discrimination.
(5). Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination is fair.”
MHLANTLA J
33
to inherit and that upon balancing fundamental rights, freedom of testation (as informed by
the constitutional rights to property, privacy and dignity) does not rank lower than equality.
[69] It is trite that freedom of testation is a central principle of testate succession and
testators are permitted to dispose of their assets freely, except insofar as the law places
restrictions on this freedom. 83 One of these restrictions is that clauses in testamentary
instruments that are contrary to public policy are unenforceable.84 This restriction limiting
the principle of freedom of testation existed before the enactment of the Constitution and
was inherited from Roman Law. 85 Since the advent of the Constitution , however, public
policy is informed by the Constitution and its ingrained values. 86 The Constitution is
therefore our starting point in determining the content of public policy. And, based on the
need to give meaning and effect to all rights in the Constitution equally, it is perspicuous
that several balancing factors must be considered by a court in determining whether a
testamentary provision is contrary to public policy.
[70] Freedom of testation itself is constitutionally protected as it implicates the rights to
property, dignity and privacy.87 This Court has acknowledged that freedom of testation “is
83 De Waal and Schoeman-Malan in Law of Succession 5 ed (Juta & Co Ltd, Cape Town 2015) at 3. This restriction
has been applied to trusts in several instances: see for example, Curators Ad Litem to Certain Potential Beneficiaries
of Emma Smith Educational Fund v The University of KwaZulu -Natal [2010] ZASCA 136; 2010 (6) SA 518 (SCA)
(Emma Smith), Syfrets above n 12 and BOE Trust above n 12.
84Syfrets above n 12 at para 23; and Aronson v Estate Hart 1950 (1) SA 539 (A); [1950] 2 All SA 13 (A) at 555-60.
85 Levy N.O. v Schwartz N.O. 1948 (4) SA 930 (W) at 937.
86 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) at para 28. Ngcobo J stated
that—
“Since the advent of our constitutional democracy, public policy is now deeply rooted in our
Constitution and the values that underlie it. Indeed, the founding provisions of our Constitution
make it plain: our constitutional democracy is founded on, among other values, the values of human
dignity, the achievement of equality and the advancement of human rights and freedoms, and the
rule of law.”
87 In respect of the right to property and dignity, the Court in Syfrets above n 12 at para 18 noted in an obiter statement
that freedom of testation “forms an integral part of a person’s right to property, and must therefore be taken to b e
protected in terms of section 25.” In BOE Trust above n 12 at para 27 the Supreme Court of Appeal held stated that –
MHLANTLA J
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fundamental to testate succession”. 88 Therefore, freedom of testation is of significant
importance in any public policy analysis and the testator’s common law and constitutional
rights must be given due regard in any balancing exercise.
[71] The respondents’ contention that the applicants cannot rely on the equality clause
and the public policy of today due to the “non -retrospectivity rule” is misplaced. Public
policy is determined or measured as it is at the time that the testamentary instrument, or
any provision therein, is enforced, not the point at which it is executed.89 To find otherwise
would mean that a litigant could only vindicate constitutional rights for conduct that
occurred after the commencement of the Constitution. This is not so. The real question is
this: can courts be expected to enforce testamentary instruments whose provisions are
contrary to public policy at the time of enforcement?
[72] Courts do not have the general power to vary trusts. However, there are exceptions
to this rule both under common law, and in terms of the Trust Act.90 Generally, a court has
the power to vary a trust under the common law where it is necessary in order to avoid
frustrating the trust object or prejudic ing the beneficiaries.91 Courts also have the power
to vary trust provisions under the common law in light of constitutional considerations.
This was notably done in Syfrets, a matter which considered a public charitable trust which
awarded bursaries to students, but which were however restricted to students of “European
descent” and not of Jewish descent, and from which female students were further
“Not to give due recognition to freedom of testation, will, to my mind, also fly in the face of the
founding constitutional principle of human dignity. The right to dignity allows the living, and the
dying, the peace of mind of knowing that their last wishes would be respected after they have passed
away.”
88 Moosa N.O. v Minister of Justice [2018] ZACC 19; 2018 (5) SA 13 (CC); 2018 (10) BCLR 1280 (CC) at para 18.
89 Syfrets above n 12 at para 26.
90 Cameron et al above n 77 at 518. Cameron et al at 527 say that despite the powers given by section 13 of the Trust
Act, the court’s common law powers to vary trusts remain intact.
91 Id at 534.
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excluded.92 There, rather than applying section 13 of the Trust Act, the Court dealt with
the application on the basis of the common law having rega rd to the Bill of Rights. The
Court considered whether the contested provisions were contrary to public policy and
therefore unenforceable.93 The C ourt noted specifically that it was consid ering public
policy at the present time and “not as it was in 19 20”.94 It found that the testamentary
provisions constituted unfair discrimination and were therefore contrary to public policy.
Following that conclusion, the Court held that “this Court is empowered, in terms of the
existing principles of the common law, to order a variation of the trust deed in question by
deleting the offending provisions from the will ”.95 Public policy has also played a
significant role when courts are considering varying trusts in terms of section 13 of the
Trust Act.
[73] However, those matters all concerned public charitable trusts. This matter concerns
a private trust that has no public characteristics. And due to the private nature of the trust,
the freedom of testation of the donor ought to be interfered with minimally .96 However,
while public charitable trusts are subject to stricter scrutiny than private trusts, private
trusts, like all testamentary instruments , are still subject to the general restriction that
testamentary provisions which are contrary to public policy are unenforceable. Cameron
et al have commented that racially repugnant exclusions in trusts for example are no longer
valid under the Constitution and the Promotion of Equality and Prevention of Unfair
Discrimination Act.97 They added that the fact that “the bequest is ‘private’ does not meet
the objection since it would be repugnant to public policy for the courts to enforce them.”98
92 Syfrets above n 12 at para 1.
93 Id at para 16.
94 Id at para 26.
95 Id at para 47.
96 BOE Trust above n 12 at para 27.
97 4 of 2000. See Cameron et al above n 77 at 176.
98 Id.
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I agree with this proposition. The private and public divide in trust law does not mean that
a court is permitted to countenance any kind of unfair discrimination in a trust simply
because it is considered private. That being said, in considering the balancing factors that
must be taken into account by a court in determining whether a provision in a private
testamentary trust is contrary to public policy, the private nature of the trust must be given
due consideration.
[74] As established above, a proper interpretation of the Trust Deed does not evince a
clear intention on the part of Mr Druiff to include adopted children. The consequent
exclusion of adopted children seemingly constitutes a differentiation and arguably some
form of discrimination on the basis of birth or the analogous ground of adoptive status. If
it is established that such exclusion amounts to unfair discrimination, it will be contrary to
public policy and can be declared unenforceable without the need for this Court to develop
the common law.
[75] I say this because in King, the majority held that as the common law presently
stands, clauses that are contrary to public policy are not enforceable, and consequently it is
not necessary to develop the common law once it has been found that a provision in a will
is unfairly discriminatory. This is because, with regard to a claim based on public policy,
applicants are entitled to assert that a clause is unenforceable for being contrary to the value
of equality and for that reason, the clause is contrary to public policy. 99 The judgment
further states that appli cants do not need the common law to be developed in order to
succeed in a claim of this nature.100 Nor can the respondents resist the claim on the ground
that freedom of testation permits the breach of equality.101 The majority held that a testator
may decide to exclude some of his or her children from inheriting their property and –
99 King above n 1 at para 96.
100 Id.
101 Id.
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“[This] does not, without more, amount to a breach of the Constitution or public policy.
Nor does the fact that she may have bequeathed the property to them in unequal shares or
had decided to disinherit all her children. The Constitution does not oblige testators to treat
their children equally. So long as what she had done, in disposing of her property by a
will, does not constitute unfair discrimination, it is permitted by freedom of testation if she
had acted within the law.”102
[76] Although in King this Court was considering the provisions of a will and not a trust
deed, it is perspicuous that the principles established therein apply to testamentary bequests
in general. This matter is concerned with provisions in the Trust Deed that are testamentary
in nature, therefore the same principles find application here.
[77] In light of the above, the question to be determined is whether the impugned words
in the Trust Deed , which exclude adopted children, unfairly discriminate against the
adopted children. If the answer is yes, the impugned words are contrary to public policy
and will, therefore, be unenforceable.
[78] Based on the conclusion I reached in the interpretative exercise above, the words
“children”; “descendant”; “issue” and “legal descendants” in the Trust Deed refer to
biological grandchildren only. Therefore, there is a differentiation between biological and
adopted grandchildren. In my view , the differentiation is on the basis of birth, a listed
ground in section 9(3) of the Constitution or adoptive status as an analogous ground. I am
of the view that adoption neatly fits the ground of “birth” since one may face discrimination
simply because they were not born of their adoptive parents; more on this below. As such,
since birth is a listed ground, the discrimination is presumptively unfair.
102 Id at para 154.
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[79] I have read the judgment of my brother Majiedt J (second judgment). The second
judgment is of the view that the listed ground of birth does not include adoptive status. 103
The second judgment reasons that “[a]dopted children are obviously not blood relatives
. . . [and] that adopted children cannot rely on an equality right in this instance. Affording
the ground of birth this wide, generous meaning – to be included as blood relations – is
untenable.”104 I disagree. The point about the discrimination being on the ground of birth
relates to the fact that at its core there is a differentiation between adopted children and
biological children. The former , who in law , and for all intents and purposes , are the
children of the adoptive parents, experience this differentiation purely on the basis that they
are not born of the adoptive parents. The obverse is true. Other children of the same
parents are not treated differently for no reason other than the fact that they are born of
these parents. If this differentiation is not based on birth, I do not know what is.
[80] In Bhe,105 Langa CJ emphasised the need to remove patterns of stigma experienced
by the vulnerable group of children born extra-maritally.106 In my opinion adopted children
are similarly stigmatised and, like children born extra -maritally, suffer an impairment of
dignity.107 And this stems from the very nature of the legal relationship created by adoption
in our law.
[81] Scholars have recognised that birth as a ground of discrimination is not limited to
the relationship between married parents, but can also include whether a child is a refugee,
103 Second judgment at [146].
104 Id.
105 Bhe v Khayelitsha Magistrate (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole; South African
Human Rights Commission v President of the Republic of South Africa [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005
(1) BCLR 1 (CC).
106 Id at para 59 . The vulnerable groups referenced in Bhe were children born extra -maritally. The same logic in
respect of the patterns of social stigma attached to extra -marital children can be similarly applied to adopted children
as will be discussed below.
107 Compare Bhe above n 105 at para 59.
MHLANTLA J
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fostered, or as in this case, adopted.108 Cheadle et al note that “if that status at birth meant
that the child was restricted from benefits or opportunities, that ground of ‘birth’ would be
triggered”.109
[82] I accept that this is the first time this Court acknowledges discrimination on the basis
of birth to refer to adopted children . However, there are important dicta stemming from
international law and foreign jurisdictions pointing us in this direction.
[83] Section 39(1) of the Constitution requires consideration of international law, and
permits consideration of foreign law when interpreting the Bill of Rights. 110 Article 2 of
the United Nations Convention on the Rights of the Child (UNCRC)111 provides:
“1. States Parties shall respect and ensure the rights set forth in the present Convention
to each child within their jurisdiction without discrimination of any kind, irrespective of
the child’s or his or her parent ’s or legal guardian ’s race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin, property, disability, birth or
other status.
2. States Parties shall take all appropriate measures to ensure that the child is
protected against all forms of discrimination or punishment on the basis of the status,
activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family
members.”
108 Albertyn and Goldblatt “Equality” in Woolman et al (eds) Constitutional Law of South Africa 2 ed (Juta & Co Ltd,
Cape Town 2014) at 2682.
109 Cheadle et al South African Constitutional Law: The Bill of Rights 2 ed (LexisNexis Butterworths, Durban 2017)
at 4-43.
110 Section 39(1) of the Constitution reads:
“(1) When interpreting the Bill of Rights, a court, tribunal or forum—
(a) must promote the values that underlie an open and democratic society based on
human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.”
111 Convention on the Rights of the Child, 20 November 1989. South Africa ratified the Convention on 16 June 1995.
MHLANTLA J
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[84] Although the UNCRC does not expressly mention discrimination against adopted
children, it does denounce discrimination against children on the ground of birth and
discrimination based on characteristics of the parent or by virtue of the child -parent
relationship. In my view, discrimination against adopted children on the basis of birth is
captured by the broad and inclusive nature of Article 2.
[85] Turning to regional and foreign law, the European Court of Human Rights (ECtHR),
albeit in the minority judgment of Judge Sir Nicolas Bratza, in Pla and Puncernau 112
recognised that the European Convention on Human Rights precludes the state from
discriminating between individuals by “creating distinctions based on biological or
adoptive links between children and parents in the enjoyment of inheritance rights” .113 It
is clear that what differentiates biological and adopted children is their birth status, and the
unequal treatment on such ground amounts to discrimination.
[86] By drawing an analogy to children discriminated against on the basis of being born
to unmarried parents, the EC tHR affirmed in Inze114 that reforms to a Bill governing
inheriting farms were “designed to eliminate, inter alia , the disadvantages suffered by
‘illegitimate’ and adopted children as compared with ‘legitimate’ children”.115 The ECtHR
also affirmed that “very weighty reasons need to be put forward before a difference in
treatment on the ground of birth out o f wedlock can be regarded as compatible with the
[European] Convention [on Human Rights]”.116
112 Pla and Puncernau v Andorra, no 69498/01, ECHR 2006.
113 Id per Judge Sir Nicolas Bratza’s judgment at 16.
114 Inze v Austria, no 8695/79, ECHR 1987.
115 Id at para 26. In this case, the applicant was born out of wedlock and contested his right to inherit his mother’s
farm (as opposed to his step-father and younger half -brother), maintaining that he was a victim on account of the
discrimination based on his “illegitimate birth”.
116 Id at para 41. See also Camp and Bourimi v The Netherlands no 28369/95, ECHR 2000 at para 38.
MHLANTLA J
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[87] In Canada, discrimination against adopted children is prohibited under the Canadian
Human Rights Act117 and is categorised as discrimination on the basis of “family status”.118
The Ontario Human Rights Code defines “family status” as the status of being in a parent
and child relationship.119 It protects non-biological parent-and-child relationships, such as
families formed through adoption ,120 and in doing so affirms that families formed by
adoption may not be viewed as if they are less “real” or valid than biological families.
Birth as a ground of discrimination is not a specifically mentioned ground, but it is taken
to still be a ground for discrimination, albeit encompassed under “family status”.121
[88] Therefore, discrimination against adopted children based on their adoptive status
falls squarely within the scope of “birth” as a listed ground in section 9(3) of the
Constitution. This view is further buttressed by the unfair impact of discrimination on the
basis of birth, which is discussed below.
[89] While discrimination based on birth (which is a listed ground) is presumed to be
unfair, it is valuable to still unpack what it is that makes discrimination on the basis of birth
unfair. Adoption is regarded as a means for which considerable benefits can be provided
117 Article 3(1) of the Canadian Human Rights Act RSC 1985 c H6.
118 Id. Section 3(1) reads:
“For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic
origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status,
family status, genetic characteristics, disability and conviction for an offence for which a pardon has
been granted or in respect of which a record suspension has been ordered.”
119 Section 10 of the Human Rights Code RSO 1990 c H19.
120 Ontario Human Rights Commission Human Rights at Work 3 ed (Carswell, Ontario 2008).
121 In the United States of America, a common practice is for birth records to be sealed – in the interest of anonymity
and confidentiality – while a new birth certificate is issued in the name of the adoptive parents. According to Sanger
“Separating from Children” (1996) 96 Columbia Law Review 375 at 489, the intention is to advance the interest of
“the adoptive parents, the birth mother, and the child – to get on with their reconstituted lives protected from the
stigmas of childlessness, premarital sex, and illegitimacy.” Protec ting an adopted child against the stigma of
“illegitimacy” clearly aims to prevent discrimination against adopted children on the ground of birth.
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to deprived groups, and through which their needs can be met. 122 Adopted children are a
vulnerable group in this country, and as a class have faced a history in which the
perpetuation of discrimination towards them has been rife. The Legislature’s decision to
override the provisos that favoured blood relations is telling of past exclusion. 123 This is
not unique to South Africa – in the United States of America for examp le “courts have
rejected petitions to open adoption records, partly because doing so would expose children
to the ‘stigma of illegitimacy ’”.124 In the South African context “social stigma and
impairment of dignity” attaches to adopted children, in the same manner that it attaches to
other children who do not fall neatly into the “nuclear family” and who are not biologically
born of two married parents.
[90] For an adopted child to be recognised, for all intents and purposes, to be part of their
adoptive family is inextricably tied to the adopted child’s rights to human dignity, to have
the best interests of the adopted child prioritised, and to family life.125 Human dignity is
expressly enshrined as a founding value in section 1(a) of the Constitution and as a
justiciable as well as enforceable right in section 10 of the Constitution.126 There is a nexus
between the rights to equality and human dignity, where the latter acknowledges the
“intrinsic worth of all human beings”.127 To not be treated as a fully-fledged member of a
family because one was not born to their adoptive parents stifles the value of, and right to,
human dignity. Allowing adopted children to be discriminated against on the ground of
122 Rochat et al “Public Perceptions, Beliefs and Experiences of Fostering and Adoption: A National Qualitative Study
in South Africa” (2016) 30 Children & Society 120 at 120.
123 Id at 124.
124 Maldonado “Illegitimate Harm: Law, Stigma, and Discrimination Against Nonma rital Children” 2011 63 Florida
Law Review 345 at 349.
125 Id at 32.
126 Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs
[2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 at fn 69.
127 Id.
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their birth would greatly undermine the very purpose of adoption and would quite plainly
infringe the dignity of those children.
[91] The best interests of the child as a principle and right is relevant here.128 This
constitutional principle is widely accepted in our jurisprudence.129 The best interests of the
child principle also serves to complement and buttress the right to family life. 130 While
there is no explicit right to family life in the Constitution, the importance of family life has
been emphasised by this Court. In Dawood,131 for example, O’Regan J stated that “families
come in many shapes and sizes” and that “the definition of family also changes as social
practices and traditions change”. 132 In Du Toit ,133 this Court noted that “ family life as
contemplated by the Constitution can be provided in different ways and that legal
conceptions of the family and what constitutes family life should change as social practices
and traditions change”.134 It stated further:
“Recognition of the fact that many children are not brought up by their biological parents
is embodied in section 28(1)(b) of the Constitution . . . It is clear from section 28(1)(b)
that the Constitution recognises that family life is important to the well-being of children.
Adoption is a valuable way of affording children the benefits of family life which might
not otherwise be available to them.”135
128 Section 28(2) of the Constitution provides:
“A child’s best interests are of paramount importance in every matter concerning the child.”
129 Centre for Child Law v Media 24 Limited [2019] ZACC 46; 2020 (4) SA 319 (CC); 2020 (3) BCLR 245 (CC) at
para 55.
130 See Currie and De Waal The Bill of Rights Handbook (Juta & Co Ltd, Cape Town 2013) at 620.
131 Dawood above n 126 at para 31.
132 Id.
133 Du Toit v Minister of Welfare and Population Development [2002] ZACC 20; 2003 (2) SA 198 (CC) ; 2002 (10)
BCLR 1006.
134 Id at para 19.
135 Id at para 18.
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44
[92] This Court espoused that the essence and social purpose of adoption is “to provide
the stability, commitment, affection and s upport important to a child’s development” 136
and to uphold the values reflected in the Preamble of the Convention on the Rights of the
Child.137
[93] Furthermore, the importance of family life is also recognised in A rticle 18 of the
African Charter on Human and Peoples’ Rights.138 The ECtHR, in Marckx139 accepted that
“the right of succession between children and parents and between grandchildren and
grandparents, was so closely related to family life that it came within the sphere of Article
8”.140
[94] Therefore, the vulnerability experienced by adopted children warrants protection by
virtue of the best interests of the child principle, coupled with the importance of family life.
In this case, the application of the proviso , and hence the exclusion of adopted children
solely on the basis of their birth , only serves to perpetuate the discrimination that they, as
a class, have been (and continue to be) subjected to.
136 Id at para 21.
137 Id at fn 13 and fn 21
138 African Charter on Human and Peoples’ Rights, 27 June 1981. South Africa ratified on 9 July 1996.
Article 18 reads:
“1. The family shall be the natural unit and basis of society. It shall be protected by the State which
shall take care of its physical health and moral.
2. The State shall have the duty to assist the family which is the custodian of morals and traditional
values recognized by the community.
3. The State shall ensure the elimination of every discrimination against women and also ensure the
protection of the rights of the woman and the child as stipulated in international declarations and
conventions.
4. The aged and the disabled shall also have the right to special measures of protection in keeping
with their physical or moral needs.”
139 Marckx v Belgium, no. 6833/74, ECHR 1979.
140 Id at paras 51-2.
MHLANTLA J
45
[95] Based on today’s public policy, infused as it is with constitutional values, it is indeed
possible to apply the impugned words in the Trust Deed to include adopted children.
[96] The second judgment is of the view that “birth must be afforded i ts ordinary
meaning” and therefore only refer to blood relatives . For the reasons illustrated above, I
disagree. In any event , the Trust Deed is also unfairly discriminatory on the analogous
ground of “adoptive status”.
[97] It is trite that differentiation on any illegitimate ground that is unfair falls foul of
section 9(3) of the Constitution. This applies not just to the listed grounds in section 9(3),
but grounds that are analogous thereto, in that they are based on attributes or characteristics
that have the potential to impair human dignity or affect persons in a comparably serious
manner.141 The factors to be taken into account in determining whether the discrimination
based on an analogous ground is unfair, include, inter alia, the position of the complainants
in society , whether they have been victims of past discrimi nation and whether the
discrimination has led to an impairment of their fundamental dignity. Historically, adopted
children have experienced a pattern of societal and legislative discrimination that renders
them a vulnerable group in society . That discrimination undoubtedly impacts the dignity
of such persons based solely on their adoptive status and can therefore be categorised as
unfair discrimination on an analogous ground.
[98] Therefore, the interpretation of the Trust Deed that excludes adopted ch ildren
unfairly discriminates against them on the basis of their birth (or alternatively on the
analogous ground of adoptive status) and is therefore contrary to public policy and
unenforceable.
141 Harksen v Lane N.O. [1997] ZACC 12; 1998 (1) SA 300; 1997 (11) BCLR 1489 at paras 47-8.
MHLANTLA J
46
Section 13 of the Trust Act
[99] In the alternative to the interp retation argument and the associated public policy
issue, the applicants rely on section 13 of the Trust Act to submit that this Court can vary
the impugned provisions in this matter to include the adopted children in question. The
applicants have succeeded in their main claim. It is therefore not necessary for this Court
to consider the alternative prayer.
Remedy
[100] The words “children”, “descendants”, “issue” and “legal descendants” used in the
Trust D eed exclude adopted children. The exclusion constitutes unfair discrimination
against adopted children and therefore it is contrary to public policy . Accordingly, this
Court cannot enforce that exclusion. In Levy,142 Price J held that where part of a bequest
is contrary to public policy, it should be treated as pro non scripto. In line with Levy, the
exclusion must therefore be treated as pro non scripto and the bequest should be given
effect as if the exclusion of adopted children does not exist. The first and second applicants
must be declared capital beneficiaries of a quarter share of the trust capital. It follows that
the appeal must succeed and the order of the Supreme Court of Appeal must be set aside .
The LJ Druiff Trust must pay the costs of this application.
Order
[101] In the result, the following order is made:
1. Condonation is granted.
2. The late Mr David Louis Ayscough Wilkinson is substituted by
Mrs Jean Vanessa Wilkinson N.O. and Mr Shayne Wilkinson N.O. as the
first applicant.
3. Leave to appeal is granted.
142 Levy above n 85.
MHLANTLA J / MAJIEDT J
47
4. The appeal is upheld.
5. The order of the Supreme Court of Appeal is set aside.
6. The following words in the Trust Deed of the late Mr Louis John Druiff –
“children”, “descendants”, “issue” and “legal descendants” exclude adopted
children.
7. The exclusion referred to in paragraph 6 constitutes unfair discrimination
against adopted children and, consequently is contrary to public policy and
is therefore unenforceable.
8. The adopted children of the late Ms Dulcie Helena Harper, Mr David Louis
Ayscough Wilkinson and Ms Amanda Bridget Truter are declared to be
capital beneficiaries of a quarter share of the trust capital.
9. The LJ Druiff Trust must pay the costs of this application.
MAJIEDT J (Mathopo AJ concurring):
Introduction
[102] Ruminating on the concept of freedom in the context of property, John Locke – the
renowned 17th century English philosopher and a leading proponent of individual property
rights at the time – said:
“Freedom is not, as we are told, a liberty for every man to do what he lists . . . but a liberty
to dispose, and order as he li sts, his person, actions, possessions and his whole property,
within the allowance of those laws under which he is; and therein not subject to the arbitrary
will of another, but freely to follow his own.”143 (Emphasis added.)
143 Laslett (ed) John Locke - Two Treatises of Government 2 ed (Cambridge University Press, Cambridge 1967) ch
VI at 57.
MAJIEDT J
48
“Allowance within the laws ” in the context of testamentary dispositions is at the heart of
this matter.
[103] I have had the pleasure of reading the comprehensive, well-crafted judgment of my
colleague, Mhlantla J ( first judgment). In respect of ( a) the applicability of the 1937
Children’s Act; (b) its interpretation of the term “legal descendants” and (c) the date of dies
cedit, the first judgment’s findings are well-reasoned and I support them. The first
judgment deals comprehensively with the interesting and thought -provoking approach
adopted in the third judgment, penned by Jafta J. I fully support the first judgment in this
respect. However, I arrive at a different outcome on the merits. This judgment only deals
with the areas of divergence between my approach and that of the first judgment.
[104] In upholding the appeal, the first judgment holds that , by excluding adopted
children, the impugned Trust Deed provision unfairly discriminates against them on the
basis of birth as well as status, and is thus contrary to public policy and unenfo rceable.144
It proposes the remedy of interpreting the words “children”, “descendants”, “issue” and
“legal descendants”, contained in the impugned Trust Deed provision , so as to include
adopted children.145 I respectfully disagree with these findings. As I seek to demonstrate,
adoption cannot reasonably be included under “birth” as a listed ground of unfair
discrimination under section 9(3) of the Constitution. Bhe,146 which is indirectly relied
upon in the first judgment to advance this proposed interpr etation of “birth”, is
distinguishable on the facts and on the law and does not support this conclusion.
[105] What the first judgment seeks to do, is to interpret the impugned words in the Trust
Deed provision – “children”, “descendants”, “ issue” and “legal de scendants” – so as to
144 First judgment at [98].
145 Id at [100] to [101].
146 Bhe above n 105.
MAJIEDT J
49
include adopted children . In interrogating this, we must consider whether there is unfair
discrimination against adopted children and the role of public policy in private trusts. That
consideration must be done with a proper regard for freedom of testation as a
constitutionally recognised and protected principle and as the bedrock of the law of
succession. There must also be a proper understanding of the fundamental value of equality
as a possible basis to limit freedom of testation. For the reasons that follow, I do not agree
that this matter calls for the limitation of the freedom of testation.
The pertinent facts
[106] The facts are extensively narrated in the first judgment and the salient aspects are
summarised here for purposes of emphasis only. It bears repetition that the donor,
Mr Louis John Druiff, at all material times had the benefit of professional legal advice. In
particular, the Trust Deed appears to have been drawn up by an attorney.147
[107] One can reasonably infer that the attorney who assisted Mr Druiff to have explained
to him the law as it was at that time, particularly regarding beneficiaries and potential
beneficiaries.148 This is of particular importance , given that the common cause facts as
enunciated in the first judgment demonstrate that at the time of the execution of the Trust
Deed Mr Druiff was acutely aware of the fact that his daughter, Ms Dulcie Harper, was
unable to carry a pregnancy to term. They had discussed this at length . Ms Harper had
conveyed to him her intention to adopt a child , but Mr Druiff persuaded her otherwise,
indicating that she should not give up on having a biological child as she had youth on her
side. Ms Harper pertinently recounts that Mr Druiff was aware at the time of the execution
of the Trust Deed that she was considering adoption . Self-evidently, Ms Harper’s
predicament must have been a pressing issue at the time.
147 On the probabilities, that attorney was Mr Gie of the firm Herold Gie and Broadhead, whose name features in the
Trust Deed, the amendment to the Trust Deed and in Mr Druiff’s will.
148 Compare: Kinloch N.O. v Kinloch 1982 (1) SA 679 (A) at 693H . See also Cohen above n 18; and In Re: Estate
Late AJA Heyns [1991] ZASCA 173; 1992 (1) SA 629 (A) at 640.
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[108] The Trust Deed was executed on 28 January 1953 and was amended on
23 May 1953. Mr Druiff passed away before the lawful adoptions of the first applicant,
Mr Wilkinson, in 1955 and the second applicant, Ms Truter, in 1957. The ineluctable
conclusion is tha t Mr Druiff, fully cognisant of Ms Harper’s pressing dilemma and the
concomitant very real prospect of her adopting a child or children in the future, took an
informed and calculated decision to exclude adopted children from the Trust Deed. He
chose to include only blood descendants in the Trust Deed. There is consequently no need
to second-guess Mr Druiff’s intention – on the common cause facts , he plainly made his
choice with full knowledge of its import and consequences.
[109] Absent direct evidence from Mr Druiff, his intention must be deduced from the
facts. The best available evidence from Ms Harper and the compelling inference to be
drawn from the facts and circumstances point in one direction only – the deliberate
exclusion of adopted children. This is not a case where the descendants died without
having any children. The blood descendants were pertinently and calculatedly included in
the Trust Deed. The following passage in Webb is apposite:
“In this case there is no need to try to glean the testator’s intention from isolated words and
phrases in the will. His intention can be gathered with relative certainty from the general
scheme of the will and the material facts and circumstances known to him when he made
it.”149
[110] In addition, t he Trust Deed was amended on 23 May 1953 by replacing clause 5
with a completely new clause.150 This was an important change, since clause 5 is not only
the key provision for the appointment of capital beneficiaries, but in its amended form it
also removed the trustees’ discretionary powers to distribute the income. From the date of
149 Webb above n 72 at para 12.
150 First judgment at [10].
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amendment, the trust’s net revenue and income had to be distributed evenly among
Mr Druiff’s four children. Mr Druiff’s death had the effect that the period during which
“[t]he child or any c hild” of Mr Druiff’s biological children could benefit from the trust
income and revenue at the discretion of the trustees came to an end. Of further importance
for present purposes is that, in terms of the amended clause 5, upon the death of each of
the donor’s four biological children their blood descendants per stirpes would become
entitled to one quarter of the remaining trust capital. Thus, the capital had to be paid to
each child’s blood descendants per stirpes in equal shares when each of the biological
children of the donor passed away.
[111] This far-reaching amendment to the Trust Deed further buttresses the view that the
donor had, on an informed and calculated basis, set out to include only blood descendants
in the Trust Deed. Further support for the respondents’ case is to be found in the persuasive
reasoning of the Appellate Division in both Boswell151 and Cohen,152 cited in the first
judgment.153 These cases also dealt with the interpretation of testamentary provisions and
with the question of whether adopted children were to be included in that interpretation.
Cohen, in particular, is directly on point as it dealt with wording similar to that of the Trust
Deed here. The remarks made in Cohen are instructive:
“There is much to be said for the view that the ordinary meaning of the word ‘child’ or
‘grandchild’ does not go beyond a testator’s own child (his bloedkind [blood child]) or an
own child of such child.”154
151 Boswell above n 49.
152 Cohen above n 18.
153 First judgment at [42] to [45].
154 Cohen above n 18 at 639E. See also Brey v Secretary for Inland Revenue 1978 (4) SA 439 (C) at 442H-443D.
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[112] The first judgment holds that based on the proviso, Mr Druiff’s intention at the time
of execution was not to include adopted children.155 That intention must of course be
gleaned from the prevailing circums tances at the time. 156 It appears to me to be more
accurate to state that Mr Druiff’s intention at that time was plainly and unequivocally to
benefit only his own children. That can be discerned from the fact that he had sought to
convince his daughter to continue trying to carry a pregnancy to full term. I disagree with
the view that the High Court and the majority in the Supreme Court of Appeal
misinterpreted the facts. 157 Those Courts correctly found that the donor took a pertinent
and informed decision to exclude adopted children. 158 So much then for the evidence,
which is overwhelmingly against the applicants. Before discussing the essence of this
dissent on the public policy issue, it is necessary to make brief remarks about: (a) the
applicable legislation, the 1937 Children’s Act, and (b) the effect of the amendment of the
Trust Deed.
Applicable legislation
[113] As the first judgment correctly holds, the provisions of the 1937 Children’s Act
apply here.159 That is an important consideration, particularly when it is understood in the
context of the cogent evidence. As long ago as 1919 it was held that:
“[t]he words of the will are to be construed in accordance with the mean ing at the period
when the will was made, but . . . the operation and effect of the will is determined by the
law in force at the time of the testator’s death.”160
155 First judgment at [50].
156 Moosa above n 40 at 169D-F.
157 Id.
158 High Court judgment above n 9 at paras 23 and 35; and Supreme Court of Appeal judgment above n 2 at para 51.
159 First judgment at [38] and [47] - [48].
160 Johnstone’s above n 40 at 115.
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[114] This exposition of the law is uncontentious and is clearly correct. We must therefore
interpret the impugned Trust Deed provisions as they were understood at the time, having
regard to the prevailing legislation. 161 In addition, the 1937 Children’s Act would also
apply on the basis that dies cedit occurred in 1953, when Mr Druiff passed away.162
[115] Section 71(2) of the 1937 Children’s Act is unequivocal that adoptive children shall
not be entitled to inherit property, which devolved upon the adoptive parent by virtue of,
amongst other things, a testamentary instrument executed prior to the date of th e order of
the adoption. The section appears in full in the first judgment,163 but the relevant part bears
repetition:
“(2) Subject to the provisions of section 79, an adopted child shall for all purposes
whatsoever be deemed in law to be the legitimate [sic] child of the adoptive parent
but shall not––
(a) become entitled to any property devolving on any child of his adoptive
parent by virtue of any instrument executed prior to the date of the order
of adoption (whether the instrument takes effect inter vivos or mortis
causa) unless the instrument clearly conveys the intention that the property
shall devolve upon the adopted child.”
[116] The Legislature took great care not to reach back in time. Neither the subsequently
enacted 1960 Children’s Act, nor the Child Care Act, were given retrospective effect. This
is also the position in respect of subsequent legislation relating to children and succession.
Section 15 of the Law of Succession Amendment Act, 164 which inserted a presumption
regarding adopted children in section 2D(1) of the Wills Act,165 expressly provides:
161 Corbett et al above n 40 at 457-8 and 508. See also: Greeff above n 38 at 275C-D.
162 Cameron et al above n 77 at 556-7. As to dies cedit and dies venit, generally, see De Leef Family Trust above n 75
at 356C-357D and Greenberg v Estate Greenberg 1955 (3) SA 361 (A) at 364G-365G.
163 First judgment at [39].
164 43 of 1992.
165 7 of 1953.
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“The provisions of this Act are, subject to the provisions of section 7 of the Wills Act (Act
No 7 of 1953), not applicable to the will of which the testator died before the
commencement of this Act.”
The applicable law was therefore different where a will was executed prior to the granting
of the order of adoption. The underlying rationale is understandable: testa trices or trust
donors could arrange their affairs and take decisions with certainty and on an informed
basis, and, consequently, their choices regarding the disposal of their property remained
intact.
[117] The proviso in section 71(2) of the 1937 Children’s Act is consequently of key
importance. That proviso, and the one contained in the 1960 Children’s Act, were directed
at ensuring that the inherent bias to bequeath property to blood relations remained extant.
But for the provisos, there was a danger of the deeming provisions in the relevant sections
in those two statutes su bverting that important principle. 166 Express provision therefore
had to be made in testamentary instruments for the inclusion of adopted children.
Freedom of testation
[118] Freedom of testation is not merely a common law principle. Freedom of testation
is founded upon the fundamental rights to dignity,167 privacy168 and property169 enshrined
in the Constitution. It includes the right to dispose of property during one’s lifetime as
well as at death. With regard to the right to dignity, it is an acknowledgement that the
relationships that mattered to the testat rix in life, and which informed her testamentary
166 See the discussion by Murray above n 48 at 266-307.
167 Section 10 of the Constitution.
168 Section 14 of the Constitution.
169 Section 25 of the Constitution. See also De Waal and Schoeman-Malan above n 83at 5; and BOE Trust above n 12
at paras 26-7.
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choices, are worthy of respect. 170 It implicates her right to privacy in a particularly
fundamental way. A testatrix’s decisions on whom to include and exclude in bequests, are
manifestations of personal love and affection, loyalties and kinship. Those decisions are
taken in a most intimate, personal sphere – they occur within what this Court has called the
person’s “inner sanctum”,171 and within “the core most protected realms of privacy”.172 In
Bernstein, this Court expounded on the relationship between privacy and conflicting
communal rights:
“[E]ach right is always already limited by every other right accruing to another citizen. In the
context of privacy this would mean that it is only the inner sanctum of a person, such as his/her
family life, sexual preference and home environment, which is shielded from erosion by conflicting
rights of the community. This implies that communit y rights and the rights of fellow members
place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism
towards identifying a concrete member of civil society. Privacy is acknowledged in the truly
personal realm, but as a person moves into communal relations and activities such as business and
social interaction, the scope of personal space shrinks accordingly.”173
And in De Lange, this Court explicated that “[t]he closer courts get to personal and intimate
spheres, the more they enter into the inner sanctum and thus interfere with our privacy and
autonomy”.174
[119] Thus, a high premium is placed on freedom of tes tation and the Legislature and
courts alike should be slow to limit these rights by too readily interfering with an
170 BOE Trust id at para 27.
171 Bernstein v Bester N.N.O. [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC) at para 67.
172 Magajane v Chairperson, North West Gambling Board [2006] ZACC 8;2006 (5) SA 250 (CC); 2006 (10) BCLR
1133 (CC) at para 42.
173 Bernstein above n 171 at para 67.
174 De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being [2015] ZACC 35;
2016 (2) SA 1 (CC); 2016 (1) BCLR 1 (CC) at para 80.
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individual’s testamentary freedom. We must heed the caution so often expressed by this
Court, in respect of a reticence to interfere. 175 Under the common law , this freedom was
curtailed in instances where testamentary provisions offend ed public policy. In our
constitutional era, public policy is rooted in the Constitution.176 To override an individual’s
testamentary choices is to criticise those choices. That criticism is not only of the testatrix’s
proprietary choices, but also of her personal preference s. Ultimately, this criticism
constitutes an intrusion into the testat rix’s common law and constitutionally protected
reasonable expectation not to have her privacy invaded. At best, what we say to her is that
her subjective world view, personal loyaltie s, affections and sense of duty were so
unreasonable – for being contrary to society’s expectations – that those choices warrant
intrusion and must be overridden by a court. At its worst, legislative and judicial
intervention may dictate to the testat rix whom she may and may not love , and may exact
punishment on the testatrix’s preferred heirs by denying them the testat rix’s property and
its concomitant freedoms.
[120] Testatrices as property owners have a right to choose to whom to leave their property
when they die. This basic proposition, that individuals enjoy freedom of testation, is the
cornerstone of our law of succession.177 Corbett et al opine that “South African law appears
to take the principle of freedom of testation further than any other Western legal system”.178
[121] This principle entails:
“[T]he freedom to dispose of the assets which form part of . . . her estate upon death in any
manner (s)he deems fit. This principle is supplemented by a second important principle,
namely that South African courts are obliged to give effect to the clear intention of a testator
175 In, amongst others, Bernstein above n 171, Magajane above n 172 and De Lange above n 174.
176 Barkhuizen above n 86 at para 28.
177 See De Waal and Schoeman-Malan above n 83.
178 Corbett et al above n 40 at 40.
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as it appears from such testator’s will. Freedom of testation is further enhanced by the fact
that private ow nership and the concomitant right of an owner to dispose of the property
owned (the ius disponendi) constitute basic tenets of the South African law of property.
An owner’s power of disposition includes disposal upon death by any of the means
recognised by the law, including a last will. The acknowledgement of private ownership
and the power of disposition of an owner therefore serve as a sound foundation for the
recognition of private succession as well as freedom of testation in South African law.”179
[122] Freedom of testation as a cornerstone of our law of testate succession is not unique
to this country. A classic exposition of this important principle appears in the English case
of Goodfellow where Cockburn CJ explained:
“Yet it is clear that, though the law leaves to the owner of property absolute freedom in
this ultimate disposition of that of which he thus enabled to dispose, a moral responsibility
of no ordinary importance attaches to the exercise of the right thus given.
. . .
The English law leav es everything to the unfettered discretion of the testator, on the
principle that, though in some instances, caprice or passion, or the power of new ties, or
artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be
attended to, yet, the instincts, affections, and common sentiments of mankind may be safely
trusted to secure, on the whole, a better disposition of the property of the dead, and one
more accurately adjusted to the requirements of each particular case, than could be obtained
through a distribution prescribed by the stereotyped and infl exible rules of a general
law.”180
179 Du Toit “The Constitutionally Bound Dead Hand? The Impact of the Constitutional Rights and Principles on
Freedom of Testation in South African law” 2001 Stell LR 222 at 224.
180 Banks v Goodfellow (1870) 5 LR QB 549 at 563-5.
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[123] Du Toit points out that this principle is also to be found in Australia and England,
which are common law jurisdictions, and in Germany and the Netherlands, two civil law
jurisdictions. He says:
“[F]reedom of testation is regarded as the founding principle of the law of testate
succession in all four systems. This freedom is supported by the recognition of private
ownership and private succession in all four legal systems.”181
In these four jurisdictions, freedom of testa tion is limited in instances of prescriptive
testamentary conditions or forfeiture clauses based on race, nationality or religion. These
restrictions, however, do not apply to clear disinherison on discriminatory grounds.
[124] In Moosa, regarding a polygamous Muslim marriage, this Court was asked to make
a finding that assets should always be divided equally among the surviving spouses of the
testator so as to advance the value of equality. In declining to do so, it held:
“The applicants suggest that a finding that assets should always be divided equally among
surviving spouses would advance the value of equalit y. But a ruling of this nature may
infringe on the principle of freedom of testation, which is fundamental to testate succession.
It would therefore be ill-advised for this Court to make any such pronouncement.”182
[125] This is, of course, not to say that freedom of testation is absolute. The law restricts
it in a number of ways. This principle was articulated by Innes ACJ more than a century
ago:
181 Du Toit “The Limits Imposed Upon Freedom of Testation by t he Boni Mores: Lessons From Common Law and
Civil Law (Continental) Legal Systems” (2000) 11 Stell LR 358 at 365-6 at 383.
182 Moosa N.O. above n 88 at para 18.
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“Now the golden rule for the interpretation of testaments is to ascertain the wishes of the
testator from the language used. And when these wishes are ascertained, the Court is bound
to give effect to them, unless we are prevented by some rule of law from doing so.”183
[126] What comes to mind is restriction by way of statutory limitations such as taxes,
maintenance obligations in respect of dependent children as well as maintenance in respect
of surviving spouses. T here are also the common law principles, which provide that
testamentary conditions may be invalidated on the grounds of uncertainty, illegality,
immorality, impossibility and for being contrary to public policy. In addition, our courts
have under the constitutional dispensation struck down clauses in quasi -public charitable
wills or testamentary trusts, most notably in respect of discriminatory provisions in wills
or trusts which provide for public scholarships, bursaries or other benefits. But there is
only one instance in this cou ntry where a private out-and-out disinherison such as the
present instance, has been overridden by a court.184
[127] The rationale behind outlawing blatant discriminatory provisions in charitable
public trusts is rather obvious. In order to be truly beneficial t o the general public, those
trusts must not exclude otherwise eligible beneficiaries on grounds that offend public
policy.185 Public policy is understood here as the norms and values which represent “the
legal convictions of the community; it represents tho se values that are held most dear by
the society”.186 In those instances, freedom of testation must give way to public policy
imperatives as informed by our Constitution. As it was explained in Emma Smith, a case
which concerned the amendment of a trust deed to remove racial and gender discriminatory
clauses:
183 Robertson above n 39 at 507.
184 This was recently decided by this Court in King above n 1 at paras 49 and 163.
185 Emma Smith above n 83; Canada Trust Company v Ontario (Human Rights Commission) (C.A.) 1990 CarswellOnt
486 (Canada Trust) at para 107.
186 Barkhuizen above n 86.
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“The constitutional imperative to remove racially restrictive clauses that conflict with public policy
from the conditions of an educational trust intended to benefit prospective students in need and
administered by a publicly funded educational institution such as the University, must surely take
precedence over freedom of testation, particularly given the fundamental values of our Constitution
and the constitutional imperative to move away from our racially divided past.”187
[128] In Canada Trust, the Ontario Court of Appeal had to consider an appeal against a
finding that the terms of a trust were not invalid ated by either (a) reason of public policy
as declared in the Canadian Human Rights Code 1981; (b) other public policy reasons; (c)
discrimination because of race, creed citizenship, ancestry, place of origin, colour, ethnic
origin, sex, handicap or otherwise; or (d) uncertainty. In upholding the appeal on the
ground of public policy, that Court explicated:
“To perpetuate a trust that imposes restrictive criteria on the basis of the discriminatory notions
espoused in these recitals according to the terms specified by the settlor would not . . . be conducive
to the public interest. The settlor’s freedom to dispose of his property through the creation of a
charitable trust fashioned along these lines must give way to current principles of public policy
under which all races and religions are to be treated on a footing of equality and accorded equal
regard and equal respect.”188
[129] Self-evidently, a measure of judicial reticence is required in respect of bequests in
private testamentary instruments. Courts must intervene sparingly and only in those cases
where public policy contraventions warrant judicial intrusion in a testatrix’s private sphere.
In Emma Smith, the Supreme Court of Appeal was urged to refrain from amending a trust
deed by removing the offending provisions, lest its intervention had the effect of dissuading
others from making private bequests for educational purposes in the future . In rejecting
this argument, it noted that:
187 Emma Smith above n 83 at para 42.
188 Canada Trust above n 185 at para 40.
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“The curators argued that the judicial amendment of a public charitable trust’s provisions
will have a chilling effect upon future private educational bequests. I cannot agree. We
are not called upon to decide the case of a testator who is a member of a congregation
wishing to create a trust for members of his faith or a club member intending to benefit the
children of fellow members.”189
[130] A similar argument was also made and rejected in Canada Trust:
“A finding that a charitable trust is void as against public policy would not have the far -
reaching effects on testamentary freedom which some have anticipated. This decision does
not affect private, family trusts. By that I mean that it does not affect testamentary
dispositions or outright gifts that are not also charitable trusts. Historically, charitable trusts
have received special protection. . . This preferential treatment is justified on the ground
that charitable trusts are dedicated to the benefit of the community. It is this public nature
of charitable trusts which attracts the requirement that they conform to the public policy
against discrimination. Only where the trust is a public one devoted to charity will
restrictions that are contrary to the public policy of equality render it void.”190
[131] Our law is clear that public charitable trusts warrant close judicial scrutiny in respect
of public policy aspects. This is because t hey are meant to benefit the gener al public.
Accordingly, exclusions which amount to discrimination and offend the values held dear
by society, cannot be permitted. These types of bequests usually endure over indefinite or
long periods of time at a public level. The potential infringement of dignity is therefore far
more prolonged than would normally be the case in private bequests. The position is the
same in other comparable jurisdictions, a topic which will be discussed shortly. There is
no sound basis that warrant s similar judicial intrusion in respect of bequests in private
testamentary instruments. No one has a right to inherit. Bequests are ex gratia (moral
rather than legal) dispositions, actuated by a testat rix’s free, unfettered discretion ( albeit
189 Emma Smith above n 83 at para 41.
190 Canada Trust above n 185 at 107.
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subject to the restrictions set out before) as part of her property rights. This entails a
testatrix having the power to distribute her personal charity freely as she wishes, according
to her own personal preferences, foibles, and eccentricities. She exercises these choices in
her inner sanctum, the most protected realm of her privacy. In doing so, she relies not only
on her fundamental right to privacy, but also on her fundamental rights to dignity and to
property. In interpreting th e right of f reedom of testation as part of these fundamental
rights, we can have regard to foreign jurisprudence, which I discuss next.191
Comparable foreign jurisdictions
Canada
[132] In Canada, the Constitution informs the dictates of public policy. Its Charter of
Rights and Freedoms contains a general limitations clause. The leading case on public
policy, Canada Trust, has already been alluded to. 192 There, the Ontario Court of Appeal
recognised the freedom of an owner of property to dispose of her property as she chose and
noted that this was an important interest that has long been recogni sed in Canada.
However, that Court held that, as the trust under consideration was premised on notions of
racism and religious superiority, which contravened contemporary Canadian public policy,
its intervention was warranted. The Court consequently struck out the offending terms and
removed all the restrictions based on race, colour, creed, religion, ethnic origin and gender.
[133] Then followed Spence,193 the leading Canadian case on discrimination in private
testamentary instruments. A Black testator disinherited one of his daughters, allegedly by
reason of her having had a child fathered by a White man. Alleging that her disinheritance
191 Section 39(1)(c) of the Constitution reads:
“When interpreting the Bill of Rights, a court, tribunal or forum may consider foreign law.”
192 Canada Trust above n 185.
193 Spence v BMO Trust Company 2015 ONSC 615.
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was based on rac ial discrimination, the daughter challenged the will on public policy
grounds and sought that it be set aside. On appeal, the Ontario Court of Appeal dismissed
this challenge. It held that a testator’s freedom to distribute her property as she wishes is
a deeply entrenched common law principle which furthers an important social interest. 194
The court further held that public policy should be invoked only in clear instances, in which
harm to the public is substantially incontestable and that the courts do n ot have an
overarching authority to examine the validity of a bequest in a private will on public policy
grounds. It said that the common law principle of testamentary freedom protects a
testator’s right to unconditionally dispose of her property and to c hoose her beneficiaries
as she wishes, even on discriminatory grounds, unless legislation precludes it. A contrary
finding would subvert testamentary freedom and would be contrary to established judicial
restraint, which is generally employed when conside ring the setting aside of private
testamentary gifts on public policy grounds.195
[134] Noting that public policy had been invoked in cases where bequests were made
subject to the fulfilment of a particular condition , which was offensive to public policy,
such as a restraint on marriage, religious freedom or an incitement to commit a crime or to
engage in illegal activity, the Court nonetheless observed:
“The pivotal feature of these cases is that the conditions at issue required a beneficiary to
act in a manner contrary to law or public policy in order to inherit under the will, or obliged
the executors or trustees of the will to act in a manner contrary to law or public policy in
order to implement the testator’s intentions. In these circumstances, the court wi ll
intervene to void the offending testamentary conditions on public policy grounds.”196
[135] The Court cautioned that:
194 Spence v BMO Trust Company 2016 ONCA 196 at para 30.
195 Id at para 75.
196 Id at para 56.
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“[T]o apply the public policy doctrine to void an unconditional and unequivocal
testamentary bequest in cases where , as here, a disappointed p otential heir has been
disinherited absolutely in favour of a different, worthy heir, would effect a material and
unwarranted expansion of the public policy doctrine in estates law. Absent a valid
legislative provision to the contrary, or legally offensive conditional terms in the will itself,
the desire to guard against a testator’s unsavoury or distasteful testamentary dispositions
cannot be allowed to overtake testamentary freedom. The need for a robust application of
the principle of testamentary freedom is especially important in the context of a testator’s
central right to choose her residual beneficiaries.”197
Ultimately, the Court concluded that expanding the public policy exception to testamentary
freedom would increase uncertainty in the law of succession and open the litigation
floodgates.198 Spence remains the leading Canadian authority on this issue , as the Supreme
Court refused an application for leave to appeal the judgment of the Court of Appeal.
Australia
[136] In Australia, testamentary freedom is equally valued. It underpins common law
jurisprudence in the area of succession.199 In the absence of a Constitution with a Bill of
Rights, there is no constitutional basis to limit freedom of testation. In Griffith, the extent
of testamentary freedom was explained by Gleeson CJ:
“[T]here may be cases in which one person’s estimation of another’s claims may seem
harsh and unwarranted, and perhaps even unnatural . . . A person may disinherit a child
for reasons that would shock the conscience of most ordinary members of the community,
but that does not make the will invalid.”200
197 Id at para 85.
198 Id at para 123.
199 Certoma The Law of Succession in New South Wales 4 ed (Thomson Reuters, Pyrmont 2010) at 6. This also
pertains to Australian jurisdiction.
200 Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284 at 291.
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[137] Various public policy grounds exist in Australian law which, if established, may
warrant rendering a testamentary disposition void. Thus, the courts have set aside
testamentary provisions that imposed illegal conditions; excluded the jurisdiction of a court
or precluded a beneficiary from litigating in respect of the particular provision; effected a
separation between parent and child or restrained marriage. Australian courts have shown
a reluctance to interfere with the apparently unjust motivations of testators, whether th e
motivations appear on the face of the will or not, unless the relevant dispositions harm
public interest. In this regard, the Australian position appears to accord with that in Canada.
[138] In a review of Spence, Lentini expresses the view that “[t]he Australian position on
testamentary freedom is analogous to that in Ontario as referred to and relied upon by the
Court of Appeal for Ontario in Spence”.201 Lentini concludes:
“Challenging the validity of a will or disposition on the ground of the will -maker’s
distasteful or discriminatory motivations is not a sound basis to attack the will, and
entertaining such a ground arguably risks opening the floodgat es to disappointed
beneficiaries relying on irrelevant extrinsic evidence.
If a similar fact scenario arose in Australia, it is likely that Australian courts would reach a
similar conclusion to that reached by the Court of Appeal for Ontario.”202
England
[139] The United Kingdom does not have a Bill of Rights that entrenches fundamental
rights upon which freedom of testation can be tested against or limited. Some of the rights
contained in the European Convention on Human Rights have, however, acquired full legal
201 Lentini “Wills that ‘Shock the Conscience’: An Australian Perspective on Spence v BMO Trust Company” (2016)
10 Elder Law Review 1 at 5.
202 Id at 10-1.
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force and effect in the United Kingdom by virtue of the Human Rights Act .203 In
Blathwayt, the House of Lords had to consider a testamentary provision that provided for
the forfeiture of trust benefits if, amongst other things, any of the beneficiaries “ [were or
became] a Roman Catholic”. 204 The Court held that the conditional forfeiture clause did
not conflict with public policy and that the testator’s wishes were to be respected. 205 Du
Toit suggests that, although Blathwayt remains the leading English authority in respect of
prescriptive testamentary forfeiture clauses based on race, religion and nationality, the
indirect horizontal application of the Human Rights Act may well bring about a change in
this regard.206
Germany
[140] Private ownership and private suc cession are constitutionally protected in
article 14(1) of the German Basic Law , which guarantees property and the right to inherit
and provides that their content limits are to be determined by the law. These guaranteed
rights are regarded in German Law as “a commensurate guarantee of freedom of
testation”.207 Private bequests are judged in Germany on the basis of a good morals
criterion. If the implementation of a testamentary bequest cannot be justified on good
morals, it will be invalidated. 208 The application of this criterion is guided by the article
14(1) freedom of testation as well as by other guaranteed fundamental rights in the Basic
Law such as the rights to equality ( article 3), to freedom of religion and belief ( article 4),
to freedom of association (article 9) and to privacy (articles 10 and 13).
203 1998.
204 Blathwayt v Lord Cawley [1975] 3 All ER 625 at 628.
205 Id at 637, 639, 649 and 650.
206 Du Toit above n 181 at 365-6.
207 Id at 380-1.
208 Id at 382.
MAJIEDT J
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[141] In German law a testatrix is under no obligation to treat her beneficiaries on an equal
footing. A testatrix therefore has unfettered discretion to include certain beneficiaries and
to exclude others, subject only to the good morals criterion.
The Netherlands
[142] The position in the Netherlands is similar to that in Germany, both of them being
civil law systems. Freedom of testation is one of the founding principles of the Dutch law
of succession. This principle is based on the recognition of private ownership and private
succession. As is the case in Germany, although these rights are not constituti onally
entrenched, other fundamental rights in the Dutch Constitution play a role in the application
of the good morals criterion.209 It is generally accepted that these rights enjoy an indirect
horizontal application and that they can , in principle , affect the general approach to
prescriptive testamentary provisions.210 Similar to the German position, if a bequest cannot
be implemented because it is unjustifiable on application of the good morals criterion, it
will be invalidated. This principle is encapsul ated in article 3:40 of the Dutch Burgerlijk
Wetboek which provides that “[a] juristic act which is, as a result of either its contents or
its purport, contrary to the good morals or offensive to the public order, is void”.211 Dutch
courts have invalidated testamentary provisions that amounted to a general restraint of
marriage; negated maintenance obligations; prohibited the alienation of bequeathed assets;
and established a prohibited fideicommissum using the good morals yardstick.212
[143] In summary, it is plain that in both common law and civil law jurisdictions, freedom
of testation is at the core of the law of succession. It is generally limited only by
considerations of public policy in some common law jurisdictions, and by a good morals
209 These include rights to equality (article 1), to freedom of religion and belief (article 6), to freedom of association
(article 8) and to privacy (article 10).
210 Du Toit above n 181 at 375.
211 Id at 378.
212 Id.
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criterion in civil law jurisdictions. As stated, the type of challenge like the one to the
impugned provisions of the trust deed in this instance has never been upheld by our courts.
That brings me to the key question: does the trust deed unfairly discriminate against
adopted children? In answering this question, I will also consider the first judgment’s
indirect application of Bhe.
Unfair discrimination against adopted children
[144] The first judgment correctly concedes that this will be the first time that this Court
finds that discrimination on the basis of birth includes adopted children. 213 Its indirect
reliance on Bhe in support of the view that adopted children are unfairly discriminated
against simply because they ar e not born to adoptive parents, is far-reaching and without
merit. The first judgment finds that the impugned provision unfairly discriminates against
adopted children based on the immutable characteristics of their birth or status. This
conclusion is arrived at by developing the section 9(3) listed prohibited ground of birth to
include adoption.
[145] In Bhe, the pleaded case was that section 23 of the Black Administrations Act214 and
its regulations infringed upon the right to human dignity of, amongst others, extra-marital
children by unfair ly excluding them on the ground of birth from inheriting property in
terms of intestate succession.215 Accordingly, this Court held that unfair discrimination on
the ground of birth in section 9(3) should be interpreted to i nclude a prohibition of
differentiation between children on the basis of whether a child’s biological parents were
married at the time the child was conceived or born. Writing for the majority, Langa DCJ
held:
213 First judgment at [82].
214 38 of 1927.
215 Bhe above n 105 at paras 2-3 and 31.
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“The prohibition of unfair discrimination on the ground of birth in section 9(3) of our
Constitution should be interpreted to include a prohibition of differentiating between
children on the basis of whether a child’s biological parents were married either at the time
the child was conceived or when the child was born. As I have outlined, extra -marital
children did, and still do, suffer from social stigma and impairment of dignity. The
prohibition of unfair discrimination in our Constitution is aimed at removing such patterns
of stigma from our society. Thus, when section 9(3) prohibits unfair discrimination on the
ground of “birth”, it should be interpreted to include a prohibition of differentiation
between children on the grounds of whether the children’s parents were married at the time
of conception or birth. Where differentiation is made on such grounds, it will be assumed
to be unfair unless it is established that it is not.”216
[146] While I unhesitatingly accept that the Bhe interpretation of the ground of birth d id
not intend to create a closed list, the word “birth” is in my view not reasonably capable of
including adoption. That is because birth, as a prohibited ground, relates to circumstances
surrounding one’s birth at the time of birth and not subsequent to that. A doption, on the
other hand, is concerned with the placement in the permanent care of a person in terms of
a court order that creates a legal relationship between the child and the parent only .
Consequently, the development of the law to hold that birth includes adoption is misplaced.
Inasmuch as the first judgment appears to espouse the view that birth is inclusive of blood
relation and that, therefore, the discrimination here is based on blood relation, that cannot
be correct. Adopted children are obviously not blood relatives. That is exactly the point
here, namely that adopted children cannot rely on an equality right in this instance.
Affording the ground of birth this wide, generous meaning – to be included as blood
relations – is untenable. “Birth” must be afforded its ordinary meaning; to seek to expand
the meaning in the manner that the first judgment does, is to unduly strain the word.
[147] It is necessary to remind ourselves what the majority in Bhe said about birth as a
prohibited ground of discrimination:
216 Id at para 59.
MAJIEDT J
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“Historically in South Africa, children whose parents were not married at the time they
were conceived or born were discriminated against in a range of ways. This was
particularly true of children whose family lives were governed by common law. Much of
the stigma that attached to extra-marital children was social and religious in origin, rather
than legal, but that stigma was deeply harmful. The legal consequences of extra - marital
birth at common law flowed from the Dutch principle that ‘een wijf maakt geen bastaard’,
the implications of which were that the extra -marital child was not recognised as having
any legal relationship with his or her father, but only with his or her mother. The child
therefore took the mother’s name, inherited only from his or her mother, and the father of
the child had no parental obligations or rights vis -a-vis the child. The law and social
practice concerning extra -marital children without doubt conferred a stigma upon them
which was harmful and degrading.
It is important, however, in a ssessing the discrimination and stigma attached to
extra- marital birth to distinguish between common law and c ustomary law. As Jones
records:
‘The African means of dealing with extramarital birth is essentially
accommodative in intent and character; it is oriented towards social
inclusivity. The mechanism of maternal-filiation provides an extramarital
child with a father, with a male ritual and social sponsor, with a place in a
conjugal unit, and it manufactures for the child a full lineal identity. Very
importantly, these attributes are socially visible – they counter what would
otherwise be clearly evident deficits in an extramarital child’s social make-
up – and are preserved and upheld by way of taboo against reference to
the child’s real paternity or social position. As far as is possible within the
bounds of cultural reason, the effect of the African system is therefore to
ensure that an e xtramarital child’s position is not compromised by the
circumstances of his or her birth.’
Nevertheless, extra-marital sons had reduced rights of inheritance under customary law, as
they would only inherit in the absence of any other male descendants. Con temporary
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research suggests too that there is social stigma attached to extra -marital children, though
the stigma probably varies depending on the circumstances and community concerned.”217
Bhe, therefore, does not support the finding in the first judgment that in this matter adopted
children were unfairly discriminated against, not even by an indirect application. Equating
this case with one involving discrimination on the basis of birth outside marriage, like Bhe,
is untenable. And article 2 of the UNCRC does not take the matter any further, as it merely
repeats the content of section 9(3) of the Constitution.
[148] The right to equality, like any other right in the Bill of Rights, must be interpreted
contextually, taking into account our past and th e future sought to be established in terms
of the Constitution.218 Where the right to equality is relied upon as a basis for impugning
any law or conduct, a court should carefully evaluate the challenge. It will do so by taking
into account whether the law or conduct being impugned has the potential to impair the
dignity of the litigant and those in similar position – based on their historical positions –
before it finds in favour of that litigant. 219 The first judgment does not demonstrate what
this historical disadvantageous position is that adopted children have occupied in society
that warrants the development of the ground of birth in section 9(3).
[149] In a contextual interpretation of the right to equality, what must be taken into
account includes the history, the powers at play as well as the interests affected by unfair
discrimination. Not every differentiation amount s to discrimination. Even when such
differentiation is proved to amount to discrimination, the unfairness thereof has to be
established.220 And this unfairness is ascertained by asking the question whether the
discrimination has an unfair impact on the individual.
217 Id at paras 57-9.
218 Currie and De Waal above n 130 at 211.
219 Harksen above n 141 at para 48.
220 Id.
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[150] The majority’s dictum in Hugo on the meaning of unfair impact is instructive:
“To determine whether that impact was unfair it is necessary to look not only at the group
who has been disadvantaged but at the nature of the power in terms of which the
discrimination was effected and, also at the nature of the interests which have been affected
by the discrimination.”221
[151] This principle was affirmed in Harksen where this Court stated that:
“In order to determine whether the discriminatory provision has impacted on complainants
unfairly, various factors must be considered. These would include:
(a) the position of the complainants in soci ety and whether they have suffered in the
past from patterns of disadvantage, whether the discrimination in the case under
consideration is on a specified ground or not;
(b) the nature of the provision or power and the purpose sought to be achieved by it.
If its purpose is manifestly not directed, in the first instance, at impairing the
complainants in the manner indicated above, but is aimed at achieving a worthy
and important societal goal, such as, for example, the furthering of equality for all,
this purpose may, depending on the facts of the particular case, have a significant
bearing on the question whether complainants have in fact suffered the impairment
in question. . . .
(c) with due regard to (a) and (b) above, and any other relevant factors, the extent to
which the discrimination has affected the rights or interests of complainants and
whether it has led to an impairment of their fundamental human dignity or
constitutes an impairment of a comparably serious nature.”222
[152] The first judgment seeks to develop our law to recognise that discrimination on birth
includes adoption, solely based on the differentiation brought about by section 71(2) of the
221 President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1; 1997 (6) BCLR 708 (CC) (Hugo)
at para 43.
222 Harksen above n 141 at para 52.
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1937 Children’s Act, as well as the legal position in other jurisdictions . This approach is
flawed, because it disregards the difference between differentiation and unfair
discrimination, the testator’s right to human dignity, which underpins freedom of testation
and, most importantly, fails to interpret the right to equality contextually . Furthermore, it
fails to acknowledge that no one has a fundamental right to inherit. The prohibition against
unfair discrimination in our Constitution is aimed at removing certain patterns of stigma
from our society. 223 Section 71(2) of the 1937 Children’s Act merely differentiated
between adopted children and biological children to the extent that it required the testatrix
to expressly indicate if she intended to benefit adopted children. This additional
requirement did not mean that adopted children were completely deprived of the
opportunity to inherit or deemed unworthy of inheriting property . According to De Waal
and Schoeman -Malan, the provision was instrumental in interpreting testamentary
documents and determining who the testator wanted to benefit in those instances where the
testator used the word “children” or “grandchildren”. 224 This is because adoption by its
very nature creates a legal relationship between the adopted child and adoptive parents and
not anyone else.
European cases cited in the first judgment
[153] There is one further aspect of the approach adopted in the first judgment that
warrants consideration. Reference is made to two cases from the ECtHR .225 Before I
discuss these cases and demonstrate how they are distinguishable from the present matter,
it is important to note that our law should be developed because it requires development
and not because we are trying to keep up with development trends in other jurisdictions.
We must develop the law in section 9(3) of our Constitution to realise our constitutional
ethos only if, as a fact, there is a vulnerable, stigmatised grou p that requires protection.
223 Bhe above n 105 at para 59.
224 De Waal and Schoeman-Malan above n 83 at 116.
225 First judgment at [85] and [86] and fn 113.
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Development of the law becomes necessary only whe n the presence of stigma and unfair
harm requires us to do so.
[154] In Pla and Puncernau the testatrix had executed a will in terms of which she
established an equivalent of fideicommissary in favour of her grandsons. 226 The relevant
testamentary provision provided that the testatrix’s son would hold the property on behalf
of the grandsons and if the son was unable to, the estate would be passed to the testatrix’s
first daughter or the second daughter’s son.227 The son later entered into a valid marriage,
adopted a son and executed a codicil in terms of which he made this son his heir. 228 The
testatrix’s great-grandchildren sought to set aside the codicil and to be declared the rightful
heirs. The ECtHR had to determine whether the adopted son can be regarded as the son
for purposes of succession. Relying on article 14 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms (the Convention), which prohibits
discrimination on, among other grounds, birth ,229 the ECtHR dismissed the interpretation
proposed by the applicants that a distinction should be drawn between adopted and
biological children, because the testatrix’s will did not make such a distinction and that
adopted children are for all intents and purposes in the same legal p osition as biological
children.230
[155] Pla and Puncernau is, however, distinguishable from the present matter. When the
will was executed in that case, there was, unlike here, no legislation requiring testators to
226 Pla and Puncernau above n 112 at paras 11-2.
227 Id at para 11.
228 Id at para 13-4.
229 Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status.”
230 Pla and Puncernau above n 112 at para 60.
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expressly indicate if they intended to benefit adopted children. A further difference is that
this Court is not required to determine the constitutionality of the impugned trust provision,
but the correct interpretation thereof.
[156] Then there is Inze. In that case, the applicant was born out of wedlock and contested
his right to inherit his mother’s farm (as opposed to his step -father and younger half -
brother), maintaining that he was a victim of discrimination because he was born out of
wedlock.231 Upon his mother’s death, the farm in question was subj ect to the special
regulations in the Carinthian Hereditary Farms Act of 1903 (the Provincial Act). 232 In
1975, the applicant instituted a claim over the farm and argued that he should be allowed
take over the deceased ’s farm instead as he was the eldest so n and further challenged the
constitutionality of the operation of section 7(2) on the basis that it had been abrogated by
operation of article 14 of the Convention.233
[157] Following a series of defeats in both the Regional Court and the Supreme Court, the
applicant referred the matter to the European Commission of Human Rights (Commission),
which he later abandoned as he entered into a settlement agreement with his half-brother.234
The Commission, following the preparation of two Bills, which were intended to eliminate
the disadvantages suffered by children born out of wedlock and adopted children, declared
the applicant ’s claim admissible and referred it to the ECtHR for determination on the
constitutionality challenge as well as damages for prohibition of inheritance in
231 Inze above n 114 at para 8.
232 Id at para 10. That Act prohibited the division of farms of a certain size for purposes of succession and provided
that one of the heirs must take over the entire property and buy out the other heirs. Section 7 of the Provincial Act
further provided that should the heirs be unable to reach an agreement as to who should take over (1) ol der heir takes
precedence over younger heir (2) children related by blood take precedence over adopted children and children born
out of wedlock.
233 Inze above n 114 at para 18.
234 In terms of the settlement, he renounced his claim in respect of the farm in exchange for a certain piece of land,
which had been promised to him by the deceased during her lifetime.
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contravention of Article 14 of the Convention. The ECtHR held that “a difference of
treatment is discriminatory if it ‘has no objective and reasonable justification’, that is, if it
does not pursue a ‘legitimate aim ’ or if there is not a ‘reasonable relationship of
proportionality between the means employed and the aim sought to be realised ’.”235 It
further held that very weighty reasons would accordingly have to be advanced before a
difference of treatment on the ground of birth. It concluded that the refusal to allow the
applicant to take over was a breach of Article 14 of the Convention.
[158] In Camp and Bourimi,236 the issue before the ECtHR was whether the Netherlands’
Supreme Court’ s finding that the letters of legitimation of a child did not apply
retrospectively, was in contravention of Article 14 of the Convention . It had to consider
the principal contention that this constituted differenti ation between children who were
born in wedlock from birth and those who were not.
[159] The ECtHR held that the daughter whose family ties with her father were not legally
recognised until letters of legitimation had been granted, was unable to inherit from he r
father, unlike children who did have such ties, either because they were born in wedlock
or had been recognised by their father. This undoubtedly constitutes a difference in
treatment between persons in similar situations, based on birth. It therefore held that, for
the purposes of Article 14, a difference in treatment is discriminatory if it “has no objective
and reasonable justification”. This entails that, if the differentiation does not pursue a
“legitimate aim” or if there is not a “reasonable relationship of proportionality between the
means employed and the aim sought to be realised”, it would be discriminatory. The ECHR
affirmed Inze in holding that very weighty reasons need to be put forward before a
difference in treatment on the ground of birth out of wedlock can be regarded as compatible
with the Convention. It concluded that the daughter ’s exclusion from her father’s
235 Inze above n 114 at para 41.
236 Camp and Bourimi above n 116.
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inheritance was disproportionate and that there has consequently been a breach of article 14
of the Convention.
[160] I have discussed these cases in some detail to demonstrate that they do not lend
support to the development of our law as the main judgment seeks to do, nor do they assist
in interpreting the right in terms of section 39(1). They are similar to Bhe. In these matters
the ECtHR had to consider whether there had been a breach of article 14. Like Bhe, they
are distinguishable, for the reasons advanced earlier.
[161] As I see it, when section 9(3) prohibits unfair discrimination on the ground of
“birth”, it should be interpreted to include a prohibition of differentiation between children
based on grounds or circumstances existing at conception or birth, which in the past had
the potential of impairing the dignity of those children later on in life. This is the essence
of this Court’s decision in Bhe, and nothing more. It is improper to go further by
developing the law to include adoption when it is not legally tenable. That development
undermines freedom of testation, which with its underlying fundamental rights to dignity,
privacy and to property, does not rank lower than the right to equality. It represents an
unjustifiable intrusion into a testatrix’s inner sanctum. And it infringes not only her right
to privacy, but also her rights to dignity and to property.
[162] We are not dealing here with the type of testamentary bequest where, for example,
a daughter is precluded in the will from marrying someone of a particular race or religion.
That kind of conditional bequest is a lifestyle dictate th at offends societal values and its
legal convictions. It has a profound effect on a beneficiary’s dignity and grievously
infringes her rights. Here we are faced with an outright exclusion of a certain class of
persons, namely adopted children. There is a stark difference between outright
testamentary exclusions and discriminating against persons who do not belong to a
MAJIEDT J / JAFTA J
78
particular class.237 Nor is this a case where there is an unlawful condition attached to a
bequest. In a case like this, where we are concerned with an out-and-out disinheritance in
a private trust deed, we must exercise judicial reticence. As indicated, courts are reluctant
to vary the provisions o f a testamentary instrument in order to include a particular person
or class of beneficiaries. The reason for this is that the court will then in effect be making
a testamentary choice for the testatrix that she may not have wanted at all, and which may
result in a further debate and contestation about the fairness of the bequest.
Conclusion
[163] The reasoning of the majority in the Supreme Court of Appeal cannot be faulted. It
correctly lays emphasis on the important right of freedom of testation and draws the
important distinction between cases of discriminatory exclusions or unlawful conditional
bequests on the one hand, and outright exclusions on the other. For these reasons, I would
grant condonation and leave to appeal but dismiss the appeal. Costs ought to be paid from
the Trust.
JAFTA J (Mogoeng CJ concurring):
[164] I have had the benefit of reading the judgments pre pared by my colleagues
Mhlantla J and Majiedt J. Although there are conclusions reached in each judgment that I
agree with, I do not support the outcomes proposed in those judgments. In my view, the
question whether Ms Harper’s adopted children should benefit under the relevant Trust
Deed should be answered with reference to the language employed in the deed itself.
Reliance on the proviso in section 71(2) of the 1937 Children’s Act is misplaced.
237 Wood-Bodley “Freedom of testation and the bill of rights: Minister of Education v Syfrets Trust Ltd NO” (2007)
124 SALJ 687.
JAFTA J
79
Meaning of the Trust Deed
[165] Before it was amended, the Trust Deed read:
“4. Duties of Trustees
A. The trustee or trustees shall stand possessed of the trust fund and shall invest and
reinvest the capital of the trust fund, and the nett rev enue and income derived therefrom,
or part thereof, shall either be allowed to accumulate, and the amount so accumulated added
to the capital of the trust fund, or the whole of the nett income and revenue, or part thereof,
shall be applied for the benefit of all or any of the following persons, who may be alive at
the time, namely:-
(a) Gladys Elizabeth Clark (born Druiff).
Married without community of property to Robert Bruce Clark.
(b) Nina Dorothy Lewin (born Druiff).
Married without community of property to Leo Lewin.
(c) Lester Philip Druiff.
(d) Dulcie Helena Wilkinson (born Druiff).
Married without community of property to Michael Ayscough Wilkinson.
(e) The child or any children of the said Gladys Elizabeth Clark (born Druiff).
(f) The child or any children of the said Nina Dorothy Lewin (born Druiff)
(g) The child or any children of the said Lester Phillip Druiff.
(h) The child or any children of the said Dulcie Helena Wilkinson (born Druiff).
It shall be entirely at the discretion of the trustees as to how much of the revenue sha ll be
accumulated and how much applied for the benefit of the aforesaid beneficiaries and no
beneficiary shall be entitled to dispute the authority of the trustees in the exercise of the
discretion hereby conferred upon them.
The trustees shall have the po wer in their absolute discretion at any time during the trust
period to apply for the benefit of any beneficiary above referred to, part or the whole of the
capital of the trust fund.
B. On the death of the said Louis John Druiff the discretionary powers set out above
shall cease and the nett revenue and income shall be divided equally between and paid to
the said four children of the donor. If any child has died at such time, his or her share
devolve upon his or her descendants per stirpes.
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80
5. Period of Trust
If the whole of the capital has not been applied for the benefit of the beneficiari es, as
provided in paragraph 4 hereof, the trust shall remain in force for a period of one year after
the death of the said Louis John Druiff.
6. Termination of Trust
At the expiration of the trust period as hereinbefore provided the trustees shall realise the
capital, or balance of capital, and divide the amount so realised equally between the said
four children of the said Louis John Druiff. In the event of any chil d dying prior to the
termination of the trust, his or her share shall devolve upon his or her legal descendants per
stirpes. If such child has no legal descendants, his or her share shall be divided equally
between the remaining children or their legal descendants per stirpes. If at such time there
are no children alive and no legal descendants of such children, then the trustee s shall
divide the capital between such persons as may be nominated as the heirs in the will of the
donor, or if the donor has failed to make a will, between the next-of-kin of the said donor.”
[166] Clause 4 of the Trust Deed directs trustees to apply the trust fund for the benefit of
the four children of Mr Louis John Druiff who executed the Trust Deed in January 1953.
Those children included Ms Harper. At the time, three of them were married and Ms
Harper was then married to Mr Michael Wilkinson but that marriage was terminated and
she later remarried a certain Mr Harper and changed her surname to Harper.
[167] In addition to the donor’s biological children who are listed by name, clause 4 adds
as beneficiaries “the child or any children” of the donor’s biological children. What is
curious about this description is that it does not simply say the donor’s grandchildren or
any children of e ach of the named donor’s children. But the clause uses a repetitive
description of “the child or any children” which distinguishes between the first mentioned
“child” and “any children” by employing the word “or” between them. Properly read, this
suggests that “any children” wide as it ordinarily is, was not intended to include one child,
where there was only one. If any of the donor’s children, as listed in clause 4(e) to (h), had
JAFTA J
81
one child only, the words “any children” would not apply to their case because their single
child would have been covered by “the child” description.
[168] I accept that it is not plain from the language of clause 4A that the donor intended
that adopted children be beneficiaries. But this is immaterial for present purposes because
the trustees’ discretionary power that was conferred by that clause ceased to exist upon the
death of the donor in 1953.
[169] Clause 4B tells us that upon death of the donor, “the nett revenue and income shall
be divided equally between them and paid to the sa id four children of the donor”. But if
any of the donor’s children had predeceased him, that child’s share shall devolve upon his
or her descendants. At the time the donor died, all four of his children were still alive.
[170] Originally, clause 5 had fixed the duration of the Trust at one year from the date of
the donor’s death. However, this clause was amended in May 1953 and it now reads:
“5. PERIOD OF TRUST
If the whole of the capital has not been applied for the benefit of the beneficiaries as
provided in paragraph 4 hereof, the trust shall remain in force until the death of the said
four children of the donor, namely, as each of the said four children dies his or her
one-fourth share of the capital of the trust shall be paid to his or her descendants per stirpes,
in equal shares. If at such time any of the descendants, who is entitled to receive a share
of the capital, is under the age of 28 years, such share of the capital shall continue to be
held in trust and the revenue thereof paid to such descendant or beneficiary, or to his or her
guardian until he or she attains the age of 28 years, when the capital shall be paid to him
or her. If any of the said four children of the donor dies without leaving issue, his or her
one-fourth share shall devolve up on the remaining children and shall form portion of the
capital of the trust and be subject to the terms and conditions of the trust.”
[171] Importantly clause 5, as amended, extended the duration of the Trust until all four
children of the donor died. Whenever one of them dies, his or her one -fourth share of the
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capital shall be paid to his or her descendants per stirpes , in equal shares. But if a
descendant is below the age of 28 years, his or her share shall be held in trust and any
revenue generated by it shall be paid to the descendant in question or his or her guardian.
Upon turning 28 years old, the capital shall be paid to that descendant. For the sake of
completeness, if one of the donor’s four children were to die without leaving a child behind,
his or her one-fourth share would devolve upon the remaining siblings and form part of the
capital of the Trust.
[172] The latter term does not apply to the present matter because Ms Harper was still
alive when the present matter was initiated in the High Court. As at that time, Ms Harper
was entitled to receive benefits from her one -fourth share. What Ms Harper and her
adopted children sought from the High Court was a declaration that her adopted children
were entitled to receive benefits under the Trust Deed as they believed that if the words
used in the Trust Deed like “children”, “issue”, “descendants” and “legal descendants” are
construed to include the adopted children, Ms Harper’s children would b e entitled to
benefit from the Trust.
[173] In other words there w as uncertainty on whether Ms Harper’s adopted children
would be entitled to receive her one-fourth share upon her death. Since Ms Harper was the
last surviving child of the donor, her death would mean that the Trust terminated and clause
6 of the Trust Deed would apply . Therefore, the question whether her adopted children
would inherit her share must be determined with reference to clause 6, which governs the
termination of the Trust.
[174] However, it does not appear that when clause 5 was amended, any consideration
was given to amend clause 6 as well, to align it with the amended clause 5. As a result,
what appears in the amended clause 5 is repeated in clause 6. For example, the division of
the remaining capital into four equal shares between the donor’s children and what should
happen to the share of those who die during the subsistence of the Trust. It will be recalled
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that before amendment, clause 5 only stipulated the duration of the T rust, commencing
after the donor’s death if there was a balance of the capital.
[175] Clause 6 was intended to regulate what happens to the Trust’s capital on termination
of the Trust. It begins by stating that capital would be divided equally between the four
children of the donor. If one of them dies before termination, his or her share “shall devolve
upon his or her legal descendants”.
[176] It will be remembered that when the donor executed the Trust De ed, he did not
intend that the Trust would terminate when the last of his children died. Therefore, what
he intended in clause 6 was that at the expiration of a year from his date of death, his
children then would receive equal shares of the capital. And if any of them died before
termination, his or her share shall devolve upon his or her legal descendants. The
amendment to clause 5 changed some of this arrangement. The division of the capital came
in advance of termination. And this gives rise to difficulties in reading the Trust Deed
coherently.
[177] However, all the clauses of the Trust Deed need to be read harmoniously. A careful
reading of clauses 4 to 6 reveals that the donor used the words “child” and “children” to
describe beneficiaries in clause 4A. Although the phrase “any children of” is capable of a
meaning inclusive of adopted children, it does not appear that in the context of clause 4A,
it was intended to carry that meaning.
[178] Clause 5 employs the word “descendants” to describe beneficiaries who were
entitled to inherit through the donor’s four children. Again in that context, it appears that
reference is made to biological descendants.
[179] But in clause 6 the language employed changes from the one used in clause 5.
Instead, clause 6 describes those who would benefit through the donor’s children as “legal
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descendants”. This change of language signifies a change of intention. 238 If the donor
meant descendants as envisaged in clause 5, why would he qualify the word descendants ?
The significance of the use of the word “legal” is that the donor wanted to ensure that the
class of descendants entitled to benefit upon termination of the Trust would be wider. It
would not be limited to biological descendants, as in the case of clause 5.
[180] An adopted child becomes a child of the adoptive parent through a legal process.
The epithet “legal” cannot properly be used to descr ibe one’s biological descendant. On
the contrary, it is appropriate to describe someone whose relationship with the parent is
sourced from a legal process. In the context of clause 6, to read “legal descendants” as
carrying the same meaning as descendant s used in clause 5 would amount to ignoring the
word “legal”.
[181] The words “legal descendants” are used thrice in clause 6. Whenever reference is
made to descendants it is qualified by “legal”. Not even once does the clause use
descendants without that qualification.
[182] It is evident from the text of clause 6 that the donor provided for all eventualities he
could think of. Apart from dividing the capital in equal shares between the donor’s
children, the clause regulates what should happen to the share of tho se who might die
before termination. Their shares were to devolve upon their legal descendants. But if at
the time of termination, one of the donor’s children had no legal descendants, his or her
share would pass to heirs nominated in the donor’s will. If the donor died intestate, that
share would go to the donor’s next-of-kin.
238 Saidi v Minister of Home Affairs [2018] ZACC 9 ; 2018 (4) SA 333 (CC); 2018 (7) BCLR 856 (CC) at para 77;
Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development; Executive
Council, KwaZulu-Natal v President of the Republic of South Africa [1999] ZACC 13; 2000 (1) SA 661 (CC) ; 1999
(12) BCLR 1360 (CC) at para 52; R v Sisilane 1959 (2) SA 448 (A) at 453E; and Port Elizabeth Municipal Council v
Port Elizabeth Electric Tramway Co Ltd 1947 (2) SA 1269 (A) at 1279.
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[183] However, the difficulty arises when clause 6 is read with the amended clause 5.
Clause 5, in extending the duration of the Trust, reads “the trust shall remain in force until
the death of the said four children of the donor”. Of course, the donor must have been
cognisant of the fact that his four children would not die on the same day. He did not say
that the Trust will end when one of them dies. But he stated that it will e nd when all four
die. To put this beyond doubt, the clause states that as each of the four children dies, his
or her share be paid to his or her descendants.
[184] This suggests that the share of the deceased child of the donor would no longer be
part of the T rust. As each such child died, their share was taken out of the Trust. This
happened in respect of Ms Harper’s three siblings whom she outlived. It appears that upon
the death of the third sibling, what was left in the Trust was only Ms Harper’s share. It is
her sole share which was subject to the terms of clause 6. The shares of the siblings were
not affected because they were paid to their descendants upon the death of each sibling.
[185] The difficulty that arises from the reading of clauses 5 and 6 is that each lays down
a different condition for paying the shares of the donor’s children to descendants and each
describes those descendants differently. Under clause 6 payment occurs only upon
termination of the Trust, even if one or more of the siblings d ies before the termination
date. On the contrary, under clause 5 payment occurs upon the sibling’s death, even if that
occurs before termination. But this difficulty does not alter the meaning to be assigned to
“legal descendants” in clause 6. Instead, what it does is to underscore the contradiction
between the two clauses.
[186] While it is true that clauses 5 and 6 are not consistent in describing who ought to
receive the share of the donor’s children who die before termination, this does not mean
that when each clause is read separately, what each means is unclear. It is not uncommon
that different clauses of a document contradict each other. The question is what a court
should do when faced with contradictory clauses.
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[187] It is a duty of this Court, as it w as of the other courts, to try to reconcile the two
clauses. One way of doing that would have been to apply the right clause. Properly
construed, clause 5 does not apply to what should happen to the trust property upon
termination. Clause 5 serves two purposes. First, it extends the duration of the Trust until
all children of the donor died. Second, it permitted the trustees to pay a quarter share of
every child of the donor who dies before termination. The payment was to be made to
descendants of each deceased child of the donor.
[188] Upon the death of Ms Harper, the Trust terminated and it was clause 6 which
applied. The fact that clause 5 contradicted it in some aspect did not mean that clause 6
should not be applied. It was clause 6 and it alone which regulated what should happen to
Ms Harper’s share in the Trust. It would be remarkable indeed to hold that a clause that
was deliberately included in the Trust Deed by the donor should not be enforced solely on
the ground that there was a conflict between it and another clause, which was not designed
to govern termination of the Trust.
[189] The relevant principle of our law is that the Court must do its best to harmonise
clauses of a will and give effect to the intention of the testator as reflected in the will. The
same principle applies to conflicting statutory provisions or constitutional provisions. In
United Democratic Movement, this Court affirmed the principle in these words:
“A court must endeavour to give effect to all the provisions of the Consti tution. It would
be extraordinary to conclude that a provision of the Constitution cannot be enforced
because of an irreconcilable tension with another provision. When there is tension, the
courts must do their best to harmonise the relevant provisions, and give effect to all of
them.”239
239 United Democratic Movement v President of the Republic of South Africa (African Christian Democratic Party
Intervening; Institute for Democracy in South Africa as Amicus Curiae ) (No 2) [2002] ZACC 21 ; 2003 (1) SA 495
(CC); 2002 (11) BCLR 1179 (CC) at para 83.
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[190] Giving effect to all clauses does not mean that one must apply them all, even where
some of them do not apply. Here, clause 5 cannot be applied to determine who should
receive Ms Harper’s share following her death. To d o so would be to disregard the
intention of the donor who made it unequivocally clear that matters relating to termination
were to be governed by clause 6.
[191] By design, clauses 5 and 6 are not consistent. They cannot operate side by side at
the same time because they were created to achieve conflicting objectives. Clause 5 keeps
the Trust alive whereas clause 6 terminates it. In this sense, they are mutually exclusive.
Each applied at a different stage of the Trust.
The SCA’s interpretation of the Trust Deed
[192] The majority in the Supreme Court of Appeal proceeded from the premise that at
the time of executing the will, “the donor was armed with the knowledge that Ms Harper
might not be able to bear children”. 240 That Court reasoned that the words “legal
descendants” must be assigned the meaning of “descendants through the bloodline”, as
held in Cohen.241 The main flaw in the majority’s reasoning is that it misconstrued Cohen.
First, Cohen did not require the interpretation of the words “legal descendants”. Instead,
the Court there had to construe “descendants”. Therefore, Cohen did not say “legal
descendants” means biological descendants, to the exclusion of adopted children.
[193] Nor can it be said that because in Cohen “descendants” was interpreted to mean
blood relations, it follows that “legal descendants” here carries the same meaning. To do
so would be to disregard the use of the word “legal”. There is no legal basis for
240 Supreme Court of Appeal judgment above n 2 at para 48.
241 Cohen above n 18.
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disregarding a word deliberately employed by the donor and the majority has provided
none.
[194] In addition, although in Cohen the Court had held that the ordinary meaning of
“descendants” is relations through the bloodline, it did not close the door to the word being
used in a different sense. The Court emphasised that in the context of the will it was
concerned with, the word was used in its ordinary sense. In this regard Smalberger JA
said:
“The word ‘descendants’ in its normal or usual meaning, therefore includes only blood
relations in the descending line and excludes adopted children. The same is true of its
Afrikaans equivalent. . . There is nothing to indicate that the testators intended to use the
word other than in its normal sense. The references in special condition (iii) to the testators’
‘said children’ or ‘our surviving children’ are clearly to those children named in the will
(i.e. the testators’ own children). Having regard to the meaning of the word ‘descendant’,
the reference to ‘grandchildren’ can, in the context, only be to grandchildren descended by
blood from the testators.”242
[195] Therefore, the authority on which the majority in the Supreme Court of Appeal
relied for giving “legal descendants” the meaning of blood relations does not support that
proposition. On the contrary, Cohen emphasised that the context in which this appeared in
the relevant will was that “descendants” there was used in its normal sense. Here, because
of the qualification “legal” and the apparent context, it can hardly be said the word is used
in the ordinary sense. And this was overlooked by the majority.
Reliance on section 71(2) of the 1937 Act
[196] The majority in the Supreme Court of Appeal further relied on section 71(2) of the
1937 Children’s Act which provided:
242 Id at 640A-C.
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“Subject to the provisions of s 79, an adopted child shall for all purposes whatsoever be
deemed in law to be the legitimate child of the adoptive parent:
Provided that an adopted child shall not by virtue of the adoption –
(a) become entitled to any property devolving on any child of his adoptive parent by
virtue of any instrument executed prior to the date of the order of adoption (whether
the instrument takes effect inter vivos or mortis causa), unless the instrument
clearly conveys the intention that the property shall devolve upon the adopted
child;
(b) inherit any property ab intestato from any relative of his adoptive parents.”
[197] It is apparent from the text of the proviso that the adopted child who is deemed to
be a legitimate child of the adoptive parents is precluded from inheriting by virtue of the
adoption. But on the explicit scheme of the proviso, the prohibition applies to two specified
situations (a) and (b). In respect of (b), that adopted child may not inherit property ab
intestato (by intestacy) from relatives of his or her adoptive parents. For present purposes
(b) means that the adopted children of Ms H arper may not inherit property ab intestato
from any of her relatives. The prohibition under (b) is not subject to any conditions.
[198] On the contrary, the prohibition under (a) is subject to two conditions. The first one
is that the adopted child is not “e ntitled to any property devolving on any child of his
adoptive parent”. It is evident from these words that this condition relates to property. The
adopted child is precluded from having title on a specifically described property. He or
she may not have title on property devolving upon a child of his or her adoptive parent.
[199] For this condition to be met in this matter, there must be proof that Ms Harper, as
the adoptive parent, had other children and property that devolved on those children. On
the facts on record, she has no other children of hers upon whom her one-fourth share from
the Trust devolved. Therefore, for the condition to be satisfied, the adoptive parent must
have had children other than adopted ones and property that devolved on those children.
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[200] Despite the failure to meet this condition, the first judgment holds that the proviso
was triggered here.243 But that judgment does not provide an explanation for applying the
proviso, on the face of non-compliance with one of its conditions. Our law is clear. Where
the invocation of a statutory provision is subject to pre-conditions, the provision cannot be
invoked if the conditions are not met. 244 I am not aware of a principle that suggests
otherwise.
[201] The second condition is that the will or trus t deed must have been executed “prior
to the date of adoption”. I agree with the first judgment that the proviso does not apply if
the adoption order was granted before execution of the Trust D eed. In that event there is
no legal impediment that stands in the way of the adopted child and preventing him or her
from inheriting under the Trust D eed, like any other child of the donor. This seriously
undermines the proposition that “child” or “children” , when used in a trust deed , mean or
refer to biological children only. The same words would include adopted children, if their
adoption preceded the execution of the trust deed.
[202] Both conditions must objectively exist before the proviso is triggered. This is so
because both of them are mentioned as part of on e continuous sentence. Therefore, there
is no legal basis for treating them differently.
[203] Once it is accepted, as it must be, that the proviso does not apply to this matter, the
requirement that an adopted child may inherit under a trust deed if it “clearly conveys the
intention that property shall devolve upon the adopted child” falls away. It falls away in
the same way as when the trust deed is executed after adoption.
243 First judgment at [47] to [48].
244 Minister of Law and Order v Hurley [1986] ZASCA 53; 1986 (3) SA 568 (A) and South African Defence and Aid
Fund v Minister of Justice 1967 (1) SA 31 (C).
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[204] But more importantly, it seems to me that applying section 71 of the 1937 Children’s
Act to the interpretation of a trust deed is inappropriate. It may lead to absurd
consequences, depending on when the trust deed was executed. If the trust deed was
executed before adoption, the words “ch ild” and “children” would exclude adopted
children. But if the trust deed was executed after adoption, the same words would include
adopted children, without the donor altering anything in the trust deed.
[205] Moreover, the section does not define those words . In the circumstances, it is
difficult for me to appreciate how the section becomes relevant to determining the sense in
which a donor has used those words in his or her testament.
[206] For all these reasons, I conclude that section 71 has no bearing on the interpretation
of wills or trust deeds. What the section does is to qualify or restrict the scope of its
deeming provision. It does this for the purpose of protecting the interests of other children
of the adoptive parent. This objective is achieved by excluding the adopted children from
acquiring property that devolves on the other children of the adoptive parent. Where there
are no other children on whom property devolves, the proviso would serve no purpose.
[207] To sum up, the proviso does not apply here because Ms Harper did not have other
children on whom her one -fourth share devolved. Accordingly, the majority in the
Supreme Court of Appeal erred in invoking the proviso where it did not apply.
[208] In the present circumstances I would declare that clause 6 of the Trust Deed covered
adopted children as beneficiaries of the capital divided equally between the donor’s
children. This would mean that Ms Harper’s share would devolve upon her adopted
children.
For the Applicants:
For the Respondents:
A Beyleveld SC and TJD Rossi instructed
by Kaplan Blumberg
H De Waal SC and JP White instructed by
Herold Gie Attorneys